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Thread Started by #Anonymous

Greetings to all Seniors,

I am working with a wellknown construction group as a Sr. Officer HR. I would like to seek your help in a court case we are dealing regarding employee termination having following history.

The employee who is been terminated was working with us as a Sr. Manager Finance for our Pune region. He joined us in 2008 and we found him suitable so his services were confirmed, during his services we also located that he had some behavioural issues like being too much rude with subordinates and juniors, not following some of the admin rules as required. After 1 year his behavioural aspects were seems to be a great headache for COO of Pune office. The Employee had been instructed to change his behaviour with others. After giving him warnings and counselings somehow, we found some positive changes with him but it was not for long period. Same thing was happening again and again. Our COO decided to take this to HR GM, and he was been asked to hand over the counseling letter to the employee addressing to change his behaviour or he would be terminated from his services. The same employee denied to receive the same and also behaved rudely with COO.

After this misconduct incident, the case was gone to top management, and it is been decided to terminate the employee, with immediate effect, and on the same lines a termination letter was issued to the employee for his misbehaviour and miconduct. However, the employee got on his knees and begged to not disclose the reasons of terminations in letter for his secure career his request is been considered on humanity grounds and the termination letter was issued accordingly, company also paid him one months due salary for his working period with other allowance like bonus and leave pays...

After one month, the same employee charged a case against company that , he is been terminated without giving any prior notice and he should been paid for three months notice pay.

Actually, as per the written contract i.e. an appointment letter issued to each employee, it is clearly mentioned that, in case of misconduct or misbehviour the employee will be terminated without any notice pay.

Although considering his financial problems and need of money company paid him one month salary.

Our CMD is been instructed to us, that we will pay him 3 month salary just to keep good will of a company and to avoid the unnecessary chapters of cour tcase being included in company history.

But my COO, dont want to do this, he wanted to fight for it, as he know he is very right at his stand and my GM HR is also associating him for same reason and as do I....because I have eye-witnessed the incidents.

Hence, I want you all experts to help with the suggestions from both aspects....

Thank you ...

Regards,

Chitralekha

SR HR ADM Officer

Nirmal Lifestyle
14th January 2013 From India, Pune
Hi Chitralekha ,
If its clearly mentioned in his appointment letter that in case of misconduct the
employee will be terminated without notice pay then there is NO need to pay
him anything towards the notice pay .
But yes you should have all the required proof and evidences that Misconduct or
Misbehavior took place .That is if he challenges the termination the termination
should be justifiable with all the evidences like memos which you issued him /
witnesses etc .
Regards
Rajeev Dixit

14th January 2013 From India, Bangalore
Thank you so much for your Reply Rajiv.Sir..
As far as evidences are concerned, nothing in written is their expect email communications. (which is accepted as an evidence or not is something doubtful)
He had been warned verbally many times, and when the written counseling letter was drafted to hand over to him, he denied to receive it...as I told you.
We are fighting for this case....I hope Truth wins....
Regards,
Chitralekha
14th January 2013 From India, Pune
#Anonymous
Dear Govind Sir,

Wish you belated happy lohri....

First of all thank you so much for putting your efforts for contributing your valuable suggestions...

Yes, you are right, his notice period in Appointment letter was of 3 months. But as I mentioned it is also mentioned in Appt Letter that if termination is due to misconduct then no pay will be paid...

I am very much agree with your suggestions which are definitely gonna help me in future... even the point of Chargesheet is also clearly acceptable. But here in our office, it was the first case, we were facing. And my seniors didn't want to act harshly on the matter,so again, we were mistaken to handover a chargesheet to him. And as you mentioned that counseling letter not sent to employees resi address....But my COO informed top management and GM HR on the same day through email, that the employee has denied to accept it....

We have drawn printouts of all the email communications related to above issue, and hopefully if court will accept it as proof then the matter may solve easily.

Thank you

With Warm Regards,

Chitralekha
14th January 2013 From India, Pune
Employee has filed case where?
Donot fall prey to unjustified demand of errant employee. State facts as they were......Fight in court of law if he persists. I donot think he will persist.
Alternatively Find out about his current job..........
[QUOTE=Chitra Upadhye;2013870]Greetings to all Seniors,
After one month, the same employee charged a case against company that , he is been terminated without giving any prior notice and he should been paid for three months notice pay.
14th January 2013 From India, Delhi
Hi Chitra,
Firstly, i think it was the right decision to terminate such kind of employee rather than having them on board.... and also when you have this point mention in appointment letter which says that if termination is due to misconduct then no pay will be paid.. then its a very strong point your legal team will support you to this...
And if any proof of counselling which was provided to him is there, then it will be added advantage to win the case... and your employees who ahve actually seen his rude behavior can provide well support to close this case.... Nothing to worry i guess your team will win.
Regards,
Chanchal.
14th January 2013 From India, Thana
Dear Chitra
He is management employee of the company, if he wants to file a case against the company he will have to do so under Contract Act which comes under the purview of civil court.
Sent a detailed reply to his legal letter. Also send a legal letter for threatening to defame the name of company.
I really fail to understand how come company like Nirmal Life style cant afford a good lawyer to answer such queries of legal nature, and why have you raised a question of such sensitive nature on public forum, along with your company name?
Regards
Octavious
14th January 2013 From India, Mumbai
Hai CHITRA LEKHA,
THIS IS BASHA FROM HYDERABAD,I SUPPORT YOUR COO DECISION TO FIGHT AGAINST THAT EMPLOYEE AS HE WAS MISBEHAVING WITH OTHER STAFF.YOU HAVE PROVED THAT ALL EMPLOYEES ARE EQUAL AS FAR AS DISCIPLINE CONCERNED. YOU TAKE SOME EMPLOYEE TO CONCERNED COURT AS A EVIDENCE TO PROVE THAT WHAT HE HAS DONE. SAY TO THE COURT YOU BROUGHT HIM BECAUSE AS YOU DONT HAVE ANY WRITTEN EVIDENCE SINCE HE HAS REFUSED TO RECEIVE ANY LETTER FROM YOU AND SAY ALSO YOU HAVE NOT MENTIONED THE REASON OF TERMINATION BECAUSE HIS REQUESTED YOU.
BE CAREFUL IN FUTURE
M.MAHABOOB BASHA
MANAGER-H R
PRIME HOSPITALS
14th January 2013 From India, Hyderabad
hi Chtralekha,
The mistake that can be considered in this case is taking his request of not disclose the reason of termination and consider him on humanity grounds.
We as an HR can not be kind towards such type of person. As it is clearly mentioned in the appointment letter that in case of misconduct and misbehavior an employee can be terminated without any notice pay but because of his request of not sharing the issue to anybody if you haven't mentioned the above said reason of termination in the termination letter then I think you can't do any thing.
You should have mentioned the correct reason in the termination letter.
You have to prepare strong evidence and witnesses.
15th January 2013 From India, Gurgaon
Hi Chitra,
I am very much agreeing to what Octavious has replied. Why are you discussing this issue on a public forum and also with your COMPANY NAME..??
I don't think you need to play any role in this..?? I would suggest not to disclose such confidential issues on such Public Forums and let your Top Management solve this issue. I can understand that there can be a chance for your information you maybe asking so, but disclosing company's name is not right way to post for your knowledge.
This way your are somewhere spoiling your Company's goodwill on Public forum.
Thanks & Regards,
Priyanka Vinda
Sr. Manager - HR

15th January 2013 From India, Ahmadabad
Hi Chitra
I fully agree with what Octavious has said. In fact when i was going through the tread, the first thing that came to my mind was, how come the company name is disclosed.
Any how email communications, letter of appointment, etc are good support for your case.
JMK
15th January 2013 From India, Hyderabad
"However, the employee got on his knees and begged to not disclose the reasons of terminations in letter for his secure career his request is been considered on humanity grounds and the termination letter was issued accordingly, company also paid him one months due salary for his working period with other allowance like bonus and leave pays.."

.

Above facts are very important and in fact the turning point in the whole episode.

Termination of an employee could be on different grounds. In this case, right from begining, it appears that there was a case of bad behaviour which led to dicision of his termination. However, if he had to be terminated on this ground, there was a need to follow established procedure of disciplinary actions in terms of relevant service conditions.He was required to be considered for any salary or notice period.

For other than disciplinary ground if his services were to be terminated, there was only one option in this case to follow the termination clause in his offer of appointment or other service conditions. If it is by either side through a notice for three months or salary in lieu thereof, same should have been followed.

As neither of above has been done, and you landed up terminating his services without assigning any reason by giving one month salary, the terminated employee has a point. In my view, his demand for three months salary in the given situation( not terminated on the ground of discipline) holds water.
15th January 2013 From India, Pune
Hello Chitralekha,
Many friends contributing their valuable suggestions about this, but to win the case proof are required.
Court give result on the basis of proof only and as said nothing is written.
U should create proof of his rudeness with subordinates and juniors in written form with backdated with reminder as a 1,2,3.
Create all proof of meetings regarding his behavior.
Contact Adv.for further guideline
15th January 2013 From India, Pune
Hi Chitralekha,
My suggestion is very clear and simple - " no need to give him even one single day salary and don't afraid with this issue other wise other employees will blackmail you in future"
You are right, take stand and set examples for others.
Chill HR
15th January 2013 From India, Gurgaon
Hi Chitralakha

a) The termination of an employee's services under ref. is for certain misconduct as mentioned by you. But this is not duly proved either by notice/enquiry or any documentary evidence, which is required in the court. The domastic enquiry, which we conduct for misconducts mentioned in Standing Orders not required, but least you could show to all employees that, you have given ample opportunity. This could have given strong message in the organisation

b) If in the termination order you have mentioned the misconduct & related details for which you have terminated the services, then its OK. but if you have merely terminted services without any reference to misconduct then you have to pay notice salary.

c) I have mentioned the above because, if his termination is set aside in the court,then court can enhance the compensation,

d) Since the employee under ref. is not workman as defined under I D Act 1947, the remidy of re-instatement with or without full back wages is not available to him.

e) These type of incidences shows that how the HR handling the complicated issues.

SDP
15th January 2013 From India, Kolhapur
Dear Chitraleka,

I endorse views of Mr.Govindsingnegi. The whole issue hinges on two aspects;1.The notice period mentioned in your appointment letter and 2. The reason cited for termination in your termination letter.

It seems that you have not mentioned in your termination letter Misconduct as ground for termination. If so you may not have good case in court of law in the absence of unequivocal evidence regarding the misbehaviour/ misconduct of the terminated employee.Of course you have said there was a email circulation among the members of top management about his refusal to receive the notice. But it will be attacked by the employee's side as subjective evidence unless you have any other evidence pertaining to the ousted employee's deliberate refusal to receive the notice. As Mr.Govingsing rightly said if you had sent a notice by R.P.A.D and if he had refused to receive the same it would have been an evidence of wilful refusal to receive the notice. Since you have not done so you cannot take a stand of wilful refusal to receive the notice.Besides that if you have obtained any written request from the employee for not mentioning misconduct as the reason for termination and consequently you have not mentioned the same reason based on humanitarian consideration you can use that letter as an evidence against him.

If you have not obtained any written request for not mentioning misconduct as reason for termination, the terminated employee's claim for 3 months compensation may be held correct by the Court. So it is prudent to pay him the compensation and treat such payment as expenditure to learn a lesson about people and procedures instead of wasting time, energy and money on legal process.
15th January 2013 From India, Chennai
HI, I want to know if the company is terminating any employee then what is the process and what has to company pay for the termination. Regards Nitesh M.S
15th January 2013 From India, Bangalore
Dear Chitralekha

SR HR ADM Officer

I have gone through your noting and also comments of many senior members. I know they are not wrong and may be administratively right up to some extent, may be they are too strict. I tell you for your future as one day you will be HR Head of some organisation and please remember this thing “If ever you are not left with any way out and have to sack someone due to reason except embezzlement, pay him all the dues including the leave pay etc. and show him your company is generous and it’s he who has forced you to sack him.

Anyway we go to present problem so if possible please submit the following to your MD.

1. It appears the COO of your Pune Unit is hiding something and maybe he was responsible to some extent for the rude behavior of that person towards some of the employees.

2. Your Company is not having any documentary proof to back the claims of your COO or HR.

3. Your HR has not followed the set procedures required before sacking of an official, that too at level of Sr. Finance Manager. I also presume that manager was quite efficient in his work as you don’t have any complaint about his efficiency.

4. Your MD was right in wishing to pay him the notice period salary, which your COO has declined due to his personal Vendetta against this Officer. Your Company does not have any prove to counter the claim of that manager in court of law.

Now come to the court case, So I tell you the outcome on the basis of given facts, that is your Company will lose this case and that too with cost and damages. Moreover if the Advocate appointed by the Manager is a real expert your company may be forced to take him back to service.

I feel to void all this botheration you may fix up a meeting with that manager by calling him to office. I doubt that person may not speak to the HR head as he was party in his sacking so if your MD agrees, request him to speak to the manager, that will not only pacify him and sort out the problem but also may be Company can get some information about some wrong doings at Pune Unit. To hide which that person was removed. More over if the person was efficient and honest there is a chance that he has rectified his mistakes and can be used at some other unit. Please remember honest Finance people are mostly blamed by dishonest employees as rude or arrogant.

One thing I am sure after meeting with MD and paying him the dues he will be pacified and agree to withdraw the court case.

One last thing remember always try to avoid sacking any employee and even if you have to sack one jut pay him generously unless he has committed some embezzlement so he should feel guilty for his mistakes.
15th January 2013 From India, Delhi
Dear chitra,
Please pay him three months salary as mentioned in the appointment letter and your company can't fight this case with successive drive,here you should be taken care when he was bagging ,not to disclose the termination reason on his full & final letter,you should have asked him to write a apology letter by stating about his career and by seeing his request not to disclose the termination issue.
The time has gone now and no need to fight for further.
Best Regards
sajid
15th January 2013 From India, Delhi
#Anonymous
Dear chitra Lekha,

After going through the above deliberations on the subject by you, and others, I had other opinions.

If you want to fight the case, it is OK as long as you are right from your side. But , imagine, a company employee leaves and joins other, and he talks positively about your company, does it not an image booster of your company...? Here, in this case, there is clear evidence that employee has mis behaved.. inspite of several warnings and councelling.. However, if you look on the other side, there is humanitarian aspects also.... The reasons for misbehavior can be due do some illness, or family issues, or some kind of frustrations... Having decided to terminate, it is human, if your company pays him 3 months notice pay and close the matter once for all... This will solve lot of head aches, money expenditure on the both side (employer and terminated employee, after all the issue here now is paying 3 months notice pay only... Here you should also consider the service period of the employee into account also....).

Regards,
16th January 2013 From India, Mumbai
Hello Chitralekha,

Many experts contributing their valuable suggestions about this, but to win the case proofs and documents are required.

Court give result on the basis of proof only and as said nothing is written.

as you mentioned above that you have given the verbal warning many times but nothing well response you got so long by this...

i have a question for you,

have issued the warning letter and termination letter.

the answer is no...

there is step for misconduct or indiscipline.

when an employee found in consecutive misconducting or even indiscipline who always stand apposite to the system, then first give him verbal clarification about their acts and deeds which has been unfavour for your company behalf of that errant employee.

and tell the errant employee if you do it again then indiscipline action may be taken against you and your service may be terminated.

if he show it again the misconducting then issue him the first warning letter, specify this guilty his course of action which is unacceptable by the company.

and also specify the outcome of that warning letter.

The management must have the receiving copy of that warning letter which you have issued to the errant employee.that warning latter must be duly signed by the employee.

if he again show indiscipline on work then issue him a final warning letter,

clear the reason for terminating him from the service....

take the receiving of warning letter.

and paste with his full and final settlement and no dues slip.

In that case , it is quite necessary to prepare the HR Policy..

as you mentioned in your appointment letter if the employee found in misconducting and indiscipline no notice pay will be given to employee... i think this is not solution, somehow it may little bit plus point for you.

but if you could take this action chronological in written form then it would have been better.

I am attaching the HR Policy which contains policy pertaining dismissal, indiscipline, misconduct, suspension etc....



Kindly go with that...

5. Disciplinary Policy

The Company Disciplinary Procedure will be used only when necessary and as a last resort. Where possible, informal and/or formal counselling or other good management practice will be used to resolve matters prior to any disciplinary action being taken. The procedure is intended to be positive rather than punitive but takes cognisance of the fact that sanctions may have to be applied in some circumstances.

An employee can discuss any part of this policy with their Line Manager. They can help clarify an employees rights as well as give guidance and support where it may be needed. Every individual has the right to representation at any point during the disciplinary process.

Suspension

Suspension is not disciplinary action. The purpose of suspension is manifold and can be used when it is necessary to remove a member from the workplace pending an investigation for example, to allow time for a 'cooling down period' for both parties, for their own or others protection, to prevent them influencing or being influenced by others or to prevent possible interference with evidence. Only the Manager in charge of that individual, at that time or their superior, have the authority to suspend an individual.

An employee suspended from duty will receive written confirmation within three days of:

• the reason for the suspension

• the date and time from which the suspension will operate.

the timescale of the ongoing investigation.

Warnings

Examples of Minor Misconduct

Below are listed examples of misconduct which may warrant either a Verbal Warning or a First Written Warning. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issue of a warning.

• Persistent lateness and poor time-keeping.

• Absence from work, including going absent during work, without valid reason, notification or authorisation.

• Smoking within unauthorised areas.

• Failure to work in accordance with prescribed procedures.

• Incompetence.

• Unreasonable standards of dress or personal hygiene.

• Failure to observe Company regulations and procedures.

Verbal Warning

A Verbal Warning is appropriate when it is necessary for the manager in charge to take action against an employee for any minor failing or minor misconduct.

First Written Warning

A First Written Warning is appropriate when:

• a verbal warning has not been heeded and the misconduct is either repeated or performance has not improved as previously agreed.

• an offence is of a more serious nature for which a written warning is more appropriate.

• the recurrence or accumulation of an offence/offences, if left, will lead to more severe disciplinary action.

Examples of Gross – Misconduct

Listed below are examples of misconduct which may be considered to be Gross Misconduct and may warrant a Final Warning, Demotion or Dismissal. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issuing of a Final Warning, Demotion or Dismissal.

• Theft, including unauthorised possession of Company property.

• Breaches of confidentiality, prejudicial to the interest of the Company,

• Being unfit for duty because of the misuse/consumption of drugs or alcohol.

• Refusal to carry out a management instruction which is within the individuals capabilities and which would be seen to be in the interests of the Company.

• Breach of confidentiality / security procedures.

• Physical assault, breach of the peace or verbal abuse.

• False declaration of qualifications or professional registration.

• Failure to observe Company rules, regulations or procedures.

• Wilful damage of property at work.

• Incompetence or failure to apply sound professional judgement.

Final Written Warning

A Final Written Warning is appropriate when:

• an employee's offence is of a serious nature falling just short of one justifying dismissal.

• an employee persists in the misconduct which previously warranted a lesser warning.

Dismissal

Dismissal is appropriate when

• an employee's behaviour is considered to be Gross Misconduct.

• an employees misconduct has persisted, exhausting all other lines of disciplinary procedure.

Letter of Warning

All Warnings must contain the following information

• The letter must be issued within 7 days of the date of the disciplinary hearing.

• The nature of the offence and where appropriate, that if further misconduct occurs, more severe disciplinary action will be taken.

• The period of time given to the employee for improvement.

• The employees right to appeal to the manager directly above that of the one issuing the warning.

• A copy of the warning and any supporting documentation must be attached to the individuals personnel file.

• The employee must also receive a copy of the warning which in the case of any written warning will be sent to their home address by recorded delivery if not handed to them in person.

• In the case of a final written warning, reference must be made to the fact that any further misconduct will lead to dismissal, and that the employee has the right of appeal, and to who they can make that appeal.

The letter confirming dismissal will contain the following information:

• The reason for dismissal and any administrative matter arising from the termination of their employment.

Thanks

Regards

Vikas Khatter
16th January 2013 From India, Chandigarh

Attached Files
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Hi Chitrlekha
I have gone through your mail and other members comments. Considering the facts of the case You should pay him Three monhts notice pay (if it is metioned in appoint ment letter (service conditons)).
Since management took decision not to dosclose the reason..you also did not follow the required procedure to deal with MISCONDUCT. Hence any claim that he was terminated on account of MISCONDUCT is not justified and it will go against the company in eyes of law.
The wise decision is to pay him the required notice pay and have a procedure in place to deal with MISCONDUCTS in the organizations for future cases.
Regards
Shailesh Parikh
Vadodara, Gujarat
99 98 97 10 65
16th January 2013 From India, Mumbai
Hi Chitralekha,
I strongly agree with Mr. Naveneet Sarin and other members who are saying to give him his dues and close the case here and for future be ready with all the policies and procedures.
Thanks,
Preeti
16th January 2013 From India, Bangalore
dear chtra, better you change the appointment letter.when you remove him on misconduct he should be heard. displanary procedure should have been followed in this case
16th January 2013 From India, Hyderabad
Hi Chitralekha,
As you have mentioned that you had sent him a letter which he didn't accepted and also your Pune COO has sent an mail to management on the same day about not acceptance of the said letter. So both these are proofs from your side and it proves that the concerned terminated employees was not following the processes.
Also the team who was working under him can be presented in court as proof of misconduct and misbehavior.
As you had said that you wanted him to terminate, so i hope you might have prepared a letter of termination with actual case. If you had prepared that original letter, than you can take that also as proof.
Do your letters have a reference number, i.e date and numbers for reference. if its there than your problem is solved.
If you want to teach such people a lesson than you can contact his current employer and inform them about the situation with relevant proof.
16th January 2013 From India, Mumbai
Dear Friend,
In my openion you are not Legally strong enough to fight back as u have not followed the proper procedure which is required in the case of miscoduct. Its blatent to mention the reason for someones termination. The person is smart enough that he pleaded to not disclose the reason in his termination letter n u did the same .
As Mr. Sajid said that u must have taken the appology in written as a proof, which was not done. so, as a matter of fact you need to pay him three months of salary as stated in the appointment letter.
16th January 2013 From India, Delhi
Hello Chtralekha

As discuss above by Govind Singh Negi that

Not accepting letter itself is indisciplinary act. Even if he has not recevied the letter, HR could have sent the same at his correspondance address through AD registered post. Anyways, you can keep this in mind for future.

I am not aware about notice period mentioned in the appointment letter. If it is one month then employee has no right to ask for 3 months notice pay. But, if notice period mentioned in appointment letter is 3 months and company has paid him only one month salary then he an claim so.



is best suggestion in all post

So my dear try to understand this it is true that he is not covered under compensation Act

I can under stand this is serious misconduct and no notice pay applicable but you do not have any evidence against that employee,

Secondly if you issue legal letter and issue other legal formalities these can be denied by civil court due to absent of evidence. The employee can be refused to all these. So pay him three month notice and avoid future problem. Because the current legal formalities may considered as manipulation of company for interest of saving money of notice.

Thanks
16th January 2013 From India, New Delhi
Dear All
As my view,
He is conning fellow and he has fight against company at any end.
following thinks are not to do against him
1. you are not prepare any evidence against him
2. you dont issue any memo for his misconduct and misbehaviour.
3. you dont conduct ant domestic inquiry against him.
4. you dont collect any evidence/written letter for his junior.
so if you (MANAGEMENT) go for any court/conciliation he may be win for his speech.
as my suggestion, HR Person has talk to settle him (Negotiation) as his way this is better solution.
or the hr person has not strong to Emp Relation - Management has decided to go any legal consultant
with regards
mohan j
16th January 2013 From India, Chennai
Hi Chitralekha,
Reply to his notice giving step by step the instances that took place which resulted in his termination. Also include you have due witnessess and proofs to prove his misconduct and misbehavior. This will put an end to his pursuing the case further.
In future, remember to follow the process and ensure every verbal warning is followed by a written communication, a copy of which should go into the personal file of the employee.
All the Best
Richa
16th January 2013 From India, Pune
Dear Chitraleka,
I agree with your coo or and others coments who supporting for termination in the forum,but as being in Human resource dept keeping humanity in mind,as he is begging on his knees for not to mention the reason in the termination letter,you would have requested resignation and closed the matter,now you have invited that the employee to go court.why can't you understand that you would have to closed profile then & there,instead of doing unproductive work for such issues.moreover company will get anything from this,if that employee wins you have pay him notice period or you win you are wasting your time.
Keeping in mind do some productive work.management was right in this issue,close the file and new hire new one......thats all...
ravindra
hr-bangalore
16th January 2013 From India, Hyderabad
HI,
CHITRALEKHA,
LET US KNOW WHETHER U HANE CLEARED ALL THE FORMALITIES DURIN HIE ULL & FINAL, IF IN THE DOC HE HAS WRITTEN THAT HE HAS NOT ANY DUE PENDING UPON HIM AND PUT HIS SIGN THAN NO NEED TO PROCEED FOR THIS CASE.
SONIYA BHARDWAJ
Manager HR
16th January 2013 From India, Chandra
Dear Chitralekha,

1. There are a couple of personality traits which are vital for group dynamics and candidates must be screened during the recruitment process or the probation period, at the most. They are - Social Effectiveness (ability to stay together with the group and contribute positively); Cooperation (cooperative with the team members); Sense of Responsibility; Liveliness (ability to stay composed under duress/ remain effective during ambiguity; and Courage (Physical and moral courage).

2. Lack of any one or all of them should raise alarm bells. Any amount of competence cannot compensate for the lack of these qualities. The Senior Manager Finance fails on all counts.

3. Unfortunately, with all the background checks, various selection tools and due precautions, such undesirable elements do manage to get recruited. Reasons are many- hurry to recruit/seemingly good profile/subjectivity during interviews etc. However, probation period is meant to check such attitudenal aberrations--He should have gone!! And should not have been confirmed.

4. Compared to other industries, construction Industry suffers from the quality of manpower, all around the world. I was myself part of the $19 billion USD project abroad, with 50,000 workers from more than 52 countries. You had excellent professionals and you had the worst of rogues too. A typical HR atmosphere is missing and the HSSE does the bulk of the jobs. However, the rules are always stringent -- Either you follow the company rules or you are out. As rightly pointed out, he is not a workman. And as per his contract, his misconduct deserves him to be terminated. And no legal system approves of such a litigation by a manager.

5. In case you CMD wishes to close the case, it must be to hush up the issue and avoid any legal hassle. However, we may be setting a precedent for more such litigations. Hence, the decision of your COO and Head HR to fight out in the court of law, is not out of place.

6. Kindly remember that in office procedure, there is nothing called verbal counselling. We do it out of good faith. But all such meetings, counsellings, written advisories/warnings etc. must be recorded. His refusal to accept the letter should have been endorsed as such by a witness and records kept. A Good Chit to such black sheep will only propagate the misery of many companies in future and does not deserve sympathy for common good. I know of one AGM HR, who was fired for misconduct and could not get another job.

7. Even if the company's name has come by mistake, there is no harm done. We as a community are in a learning curve. Best of the companies learn from their own failures and make their own case studies. Great people make fun of themselves and laugh it out. No big deal.

8. I will suggest to all my HR colleagues to keep the probation period to analyse and confirm behavior patterns before confirmation. Skills can be trained and bettered but bad character traits are not trainable. People suppress it to hide their aabnormality. But a deliberate Stress Management brings the true self out in the open.

I also look forward to many more suggestions from this learned galaxy of professionals.
17th January 2013 From India, Delhi
Hello Chitralekha

I have gone through the facts of the case and members' comments. There are clearly ceratin lapses in handling the case which may make your case weak in the court.

1) In such circumstances, you should have obatined his resignation instead of choosing the root of termination.

2) Even by terminating his servcies, you have not stuck to the terms of appoitment letter in letter and spirit which permits you to terminate his servcies in the event of any miscondcut committed by him. By refraining from mentioning the cause in the letter of termination, you rendered the termination plain and without any justification and vioative of the terms of appointment, leave alone the principles of natural justice.

3) Even if you present letters of warning and counselling in respect of his bad behaviour in the past, the court in all probablity may not take cognisence of the same, since those incidents were closed by the said letters of warning etc. and do not constitute a present cause for his termination since you failed to relate them to his termination.You cannot now do it behind his back which is violative of the principles of natural justice.

4) Even if there is an enabling clause in the letter of appointment, empowering the employer to terminate the servcies of an employee in the event of any misconduct committed by him, the courts may not permit a summary termination for a misconduct without heraing him as per the principles of natural jutice since the allegation will be stigmatic and hurt his career and livelihood. You should have issued a chargesheet or at least a show-cause notice putting him on notice of his alleged beahviour and he should have been heard in respect of the charge.After hearing him, you should have taken an appropriate decision.

5)Leave alone issuing a show-cause notice, you have not even mentioned the reasons fror termination acceding to the request of the employee.

You should consider the chances of your success in the court with the help of a specialist in the matter and then take a call.The employee may also come out with his own theories of prejudice etc. agaisnt you which you need also to defend in the court. It is not easy to convince courts and to stand to the examination by the lawyer of the employee without a clinching evidence.You should first ascertain from your advocate whether the evidence which you have ,to defend your action will be adequate to supprt your action.you aways need to take a considered view but not an emotional view in such matters, failing which you will be beating a dead snake and shed lot of sweat, finally knowing that all the sweat ahs gone waste.

B.Saikumar

Mumbai
17th January 2013 From India, Mumbai
Dear Chitralekha, I read your article very deeply same happens in our company and we have taken same decision . Your case is just a mirror image of what happen in our organisation Regards, Neetu
17th January 2013 From Malaysia, Klang
Hi, Greetings to All Members,
Hi, Chitra, I support to M. Basha concepts , you have to put in court all letter receive copy of employee. step by step whether it had or soft copy. 1st advice letter ,warning letter 2nd warning letter & final letter.
S.Rao
Executive HR & IR
17th January 2013 From India, New Delhi
In any termination case on the ground of misconduct it is necessary to establish the charges whatever leveled against the employee only thereafter any employer/company can terminate the person.
or you can hold a suspension pending enquiry against charged employee till the charges proved.
and second if it is mentioned in appointment letter that the in case of termination by employer there is no such any payment of notice period will be made by company to the employee.in this case company shall not be liable to pay the amount of notice period.
18th January 2013 From India
HI,
i just want to know for what reason u have given in termination letter becouse u have quated that after his request you have not mentioned a reson "MISCONDUCT ".if you are not mentioned the reason misconduct in termination letter then where is point to terminate his service due to misconduct.
Vijay
20th January 2013 From India, Madras
Chitralekha ji,
I have gone thru' almost every posting in this thread. In any legal matter I do not wish to make comments with out reading all the documents pertaining to case and seeing all the facts and figures but still I say that prima-facie your case seems to be poor.
However, I would like to give here certain tips to all the members so that care can be taken by them in future in such or similar circumstances.
1. It is always beneficial to take resignation by certain class of employees rather than issuing termination letter.
2. Collect documentary evidences as much as possible before taking any action.
3. Once you take any action, come what may, be firm to it.
4. While taking action you should be very fair / reasonable.
4. Name of the company or person should be avoided while posting any kind of issues in public forum.
5. Do not write your name at the end of posting when you wish to post any thing Anonymous / secret.
20th January 2013 From India, Mumbai
Hi Chitra,
This is somewhat like "take the horse to the pond" but do not say the horse, com'on now drink it", bcoz, the horse is aware that it has 'water to drink' in front.
Most of the organization do not follow The Same Rules in the Contract-Agreement or Appointment Letter in the higher level hierarchy. Hence any letter / communication being issued to such an employee should be carefully pursued before issuance.
Santhan Raj
21st January 2013 From India, Hyderabad
hi,
do you have proof of complain from his subordinates that their head is troubling them. how you will prove that he was having rude behavior?
if you have written complain against his misconduct and on that complain if any letter issued to him then only i think court will listen to you. otherwise as per contract you have to give 3 months pay because you paid one month pay which showed that you are terminating him just like that and not on misconduct ground and you paid 1 month salary. court will say that he is asking 3 months salary that is why now you are bringing fake proofs.
regards
rajiv sinha
21st January 2013 From India, Mumbai
Hi,
First of all the action is appropriate. In future, in such cases if he request the Management not to put any adverse note on termination letter than at that time ask such person to put up his resignation and on the basis of his resignation, seperation process has to be done.
Secondly, you have not mentioned where (in which court) he has challange his termination. Being the Managerial role he is not entitle to challange this matter in Labour Court.
M Gohel
23rd January 2013 From India, Ponda
Clearly the man has no principles from what has been stated. Just fight the case in court and bring out witnesses who have heard the words used by him,rude conduct etc.
Find out who his new employer is and let them know of his character.
Even email will be accepted as evidence.
If three months pay was specified,why did he not raise the issue of being given one month pay. All this is proof against the individual. The case filed by this employee will fall if dealt with carefully,by marshaling all evidence against him. Every thing need not be in writing always.Oral evidence by employees will have value,though they will have to face cross examination where they will be labelled as partisan witnesses.
Do not compromise with unscrupulous people.
29th January 2013 From India, Pune
"the employee got on his knees and begged to not disclose the reasons of terminations in letter for his secure career his request is been considered on humanity grounds and the termination letter was issued accordingly, company also paid him one months due salary for his working period with other allowance like bonus and leave pays"
As per above sentence you are going the termination process through cos. hr policy. you also paying the one month salary.
dear sir,
i want to sure you that in rules & regulation co. not consider any personneol feeling. if you are written on the appointment letter in case of misconduct or misbehviour the employee will be terminated without any notice pay.
thaen why are you given the favour.
there fore if you are given the termination through hr process than than he was elegible for the pay
Thanks
Niraj Kumar
HR Officer
8458807877
1st February 2013 From India, Bhopal
Hi Chitralekha !!
Greetings!!
as per my understanding the emoloyee you have terminated he is not a workmen because as definition given in Sec 2(s) of ID act,1947. It is a matter of Contract law so it can be decided by labour court. Actually while giving any opinion and judgement it must be objective in nature and as you know LC will not act as a civil court so while LC will probe into matter, the bench will find out the employee was terminated because of misconduct and it is disciplinary action so must not worry but as i say you must next time send the mail regarding warnings. He can deny to receive the letter but can not deny the mails and he cannot say that i hav'nt seen the mail, because it's his fault. so take all evidence in form of documents and persons you will win for sure.
Proper homework will be required.
Best wishes !!
Regards
Anoop Singh
8th February 2013 From India, Delhi
Dear Sir
As i was employed one of the organisation where in while settlement my earned leave was calculated on the basic only whereas as per the information that the earned leave wages should be calculated on the gross salary
kindly confirm which is correct in case the earned leave should be calculated on the gross then should i eligible to ask for the balance amount with the company legally and is there time limit to ask the same. pls clarify
20th July 2017 From India, Madras
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