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Thread Started by #upasana1101

Dear All,
We have excess manpower in compare to work. I have told an employee to resign and we will pay him 1 month salary.but he is not ready to resign.he said "give me in written that you are terminating me". what should i do.he is working since 1 year and a confirmed employee,
Regards
Upasana
14th August 2013 From India, Delhi
Dear Upasana,
Why would an employee resign just because you are asking him to?
You may be paying him 1 month's salary but that don't suffice.
What if he don't get job in the stipulated period. how is he to take care of his family?
Usually when the company retrenches, the company has obligations. They need to give considerable notice period, and need to pay some compensation. (I dont have much details on this. Seniors might perhaps help with details)
However, also understand that you may be in real trouble if you are terminating an employee for no fault on him.
There can be legal and ethical/moral complications.
14th August 2013 From India, Mumbai
HI Upasana,
We do follow the same practice sometimes if manpower is more and we got less work from our clients, But we have a genuine reasons like non performance, Integrity issues and others....
Just want to know why are asking that person to resign instead of others. how can you justify his termination or resignation though he had 1 year of experience....
Regards
14th August 2013 From India, Bangalore
Dear Roopa, He has less technical knowledge then others. That’s the only reason. Regards Upasana
14th August 2013 From India, Delhi
Upasana,
Is he able to achieve the work target?
Is he able to perform the job he's expected to?
How is company suffering due to his lack of knowledge compared to others?
See basically you need sufficient evidence to claim that since he is not able to generate revenue and is a cost to company, you would like to terminate him.
Unless you have sufficient data for that, it would be difficult.
14th August 2013 From India, Mumbai
I appreciate the genuine honesty and straight-forwardness involved here.
"I have told an employee to resign and we will pay him 1 month salary"
This is a perfect example of the "Hire and Fire" policy in the wake of globalization.
Unfortunately our country does not have any Unemployment dole or a Social Security System.
I would like to ask Upasana; what her reaction and feelings would be, and how she will deal with the situation herself; if her superiors asked her to do the same, " You resign and we will pay you 1 month salary".
In fact this trend is now becoming very routine and ubiquitous.
Warm regards.

14th August 2013 From India, Delhi
Dear Upasana... Then why should your company retain him from past one year, if he has a less technical knowledge...??? He may ask you the same if you give above reason to him,,, Am I right??? Regards
14th August 2013 From India, Bangalore
Dear All, The management has changed now and i was asked to do so. Regards Upasana
14th August 2013 From India, Delhi
Hello Upasna,
Greetings of the day!
Employees earn bread and butter from employer and if you will try to snatch that they will be violent.
As mentioned you have excess manpower I would like to know this happened “root cause”:
Why employer hired excess manpower?
Don’t you have scope for shifting manpower to other department or units?
Do you provide out placement support for your employees?
You need to be very cautious while dealing with human as this will have impact to humans working with you and prospect employees also.
If you have excess manpower and no hope for business growth in near future then you may redundant your excess manpower but pay them compensation as applicable, provide physiology and out placement support.
Make this entire phase as easy as possible and deal with you retained employees carefully so that they have minimum negative impact. You should also have legal consultant for this.
14th August 2013 From India, Bhubaneswar
Right sir,
Often while drafting rules, we forget how the person will react?
Perhaps we forget to put ourselves in their shoes and feel the pinch before we suggest someone else to walk a mile in that shoes...
It is quite a normal trend in many countries to hire and to fire... But they are well compensated...
I had an uncle employed at the USA where his employment tenure was revised weekly. Meaning every Fridays when he goes home, he's unsure if or not his access card will be allowed entry. He used to get payment of his work every Friday evening at the closure of the office hours.
However, he was not tensed perhaps because they have great policies in place to take care of such employees and know well how to tackle them post termination.
We do not have such policies. We just use things to our (management's) benefit.
They really say the truth - Half knowledge is dangerous....
14th August 2013 From India, Mumbai
We try to help the employees. People i ask the solution, do we have any way for the separation of his services which is not legally bounded . Regards Upasana
14th August 2013 From India, Delhi
Can you please rephrase it in simpler words??? This is something too vague
14th August 2013 From India, Mumbai
Dear Upasana,
Under Section 25 of Industrial Disputes Act the procedure for retrenchment is given.
The more or less main things to keep in mind would be
1. To pay him Retrenchment compensation which is 15 days average pay for per completed year of service.
2. He should be given one month notice pay.
3. He must be paid the Payment in lieu of the leaves in his kitty.
4. He must be paid all other legal dues due to him.
5. The reason of Retrenchment should be given as Excess Manpower. (Do you plan to Retrench this employee only or some more? What is the total strength of your employees? How many do you think are excess?)
However I would request you to kindly talk to him any tell him that you are going to do this and ask him to find another job in the meantime. Give him off to give interviews and show that you are trying to help him. He might understand that. Otherwise the above procedure is legal if all the things mentioned above are followed.
14th August 2013 From India, New Delhi
Dear Sir,
You cannot terminate the confirmed employee abruptly without due procedure.
You have to convince him and make him to resign by giving minimum 3 months salary as he has to search new employment which requires time to him.
D.Gurumurthy
HR & IR Consultant,
Hyderabad.
14th August 2013 From India, Hyderabad
Dear Upasana,
You have received the best of advices and suggestions from our mentors and experts.
I might be adding on to the wish list, and requesting you to outplace him. His skills are best known to his employers. Hence, your team looking for an opening and getting him a job would remain the best solution.
This calls for effort and beating the odds. However, its not impossible. Please approach firms where you can find a role, right-fit for him. Include your vendor firms as well. Even if the company is smaller or the pay might be different, it would offer him continuity in his career.
Finding a job without one is next to impossible. Would you as an employer , hire someone who was unemployed for a considerable time?
This might take some time as well, but would be worth it. As you would be sending the right feelers to the grapevine in your firm.
Please invest in this and reap benefits through employee loyalty. Wish you all the best!
14th August 2013 From India, Mumbai
"Please resign and take a month's salary" is not the proper process of downsizing. In my view, you and your company have so far shown a very scant regard for the word "human" in your resources. It is probably the management's fault there is no work to be given to this person. Was there any kind of business projection when you hired your resources?

Consider this, had he been tasked with Business development; you would have had records of under-performance, and hence a justifiable termination.

Arbitrary and subjective termination is downright wrong, unethical, and very harmful for your organization - both from the perspective of retained employees and prospective employees. Armed with the almost no relevant details, it is my guess that there are far too many incompetent and redundant people in the organization; but this chap is getting the axe probably because he is a soft target.

If you really want valuable suggestion, I suggest you share with us complete details such as role, business situation, change in structuring if any, etc. (withholding all names) and maybe we can come back to you with relevant notes.
14th August 2013 From India, Mumbai
Dear Upasna,

You will need to address a few issues:

1. Has the workload actually reduced or is it a matter of lack of technical knowledge?

2. If you retrench the employee, is the company ready to hire him once the work load demands an increase in manpower? I'm sure you are aware of the conditions of retrenchment.

3. Are there any other reasons for wanting to sack this employee? Please remember that technical knowledge can always be gained or improved.

What is the level of the employee and what is his designation?

The company has the privilege of sacking an employee but it cannot sack one employee and hire another to do the same job. So you could:

1. Issue him a letter specifying where his technical knowledge is weak and where he needs to improve.

2. Give him reasonable time to enhance his knowledge.

3. If he does not improve now you can issue a warning and in about three months or so you would have something to fall back on. However, the question remains that if in one year the company did not find fault with him, how come now all of a sudden there is a problem with his competence?

4. If the company does decide to fire the employee without a reason (as it appears), then I would recommend clearing all dues including leave encashment, PF etc and giving him four months gross monthly salary (one month notice pay and three months retrenchment pay).

Warm regards,

Ajay Chaudhari
14th August 2013 From India, New Delhi
Dear upasana you give him written notice. Than he dont do any thing regards amit trehan
14th August 2013 From India, Hoshiarpur
Hi Amit, Pray let us know on what basis the notice will be served? And believe me Sir, if he is half as strong as I am hoping to be, he will sue the company on the notice itself.
14th August 2013 From India, Mumbai
Hello Upasna,
Please follow your company rules, do as per your company appointment letter.
If employer is not satisfies with the performance than you should start training & development department in your company.
If person is employed for more than one year and his status is confirmed than why employer doubting?
If your not satisfied than why you have made confirmed rather than probation....?
As HR is our responsibility to guide employer about both the side Not like that "employer has told me so i will terminate him/her"
We are not PUPPETS of employer.Do right practice as HR or leave the Function of HR if your not able to do right justice to anyone.
Thanking you,
Regards,
Ashish
14th August 2013 From India, Pune
Dear All,
Upasna has approached this site because she needs help. Obviously she does not have the desired support from her management.
I feel offering her suggestions that are within the legal framework would help her chose her a course of action. Amit's suggestion may have worked in a particular case. Rest assured it will not in most cases. The company will end up facing a legal battle and Upasna may well lose her job in the process.
Can we resolve to give her viable options rather than submerge her with suggestions that may not work and confuse her in the process?
Thanks in advance!
Warm regards,
Ajay Chaudhari
14th August 2013 From India, New Delhi
Dear Upasana,
You want to give one month notice pay salary . its better if they considered but I think if you want to terminate any employee's Services. you need to pay some extra. like some other benefit painding bonus,retrenchment benefit,leave pay etc.
Thanks ,
Purav Jangra
8689007106
14th August 2013 From India, Karnal
Manpower forecasting is very important and any employer can save himself from these kind of situations. Based own my experience, you have to inform him that your position has been removed due to restructuring of organizational hierarchy. You are our valued employee and will stay in touch whenever we need your services, we will contact you.
Regards,
Mairaj
14th August 2013 From Pakistan, Lahore
Dear Upasana,
From your assertions, there is 2 issues here. Firstly if the employee is redundant, then you can retrench him. If so, you must follow the legal requirements on retrenchment, i.e notice period, retrenchment benefits. Voluntary Separation service (VSS) will be a good option in this instance.
Secondly if the person is not performing, then you may take action under poor performance. However, if this route is taken, you have to ensure that sufficient warnings and trainings had been provided. If his performance is still poor despite all these, then the person can be terminated.
Thanks
S. Ponusamy
15th August 2013 From Malaysia, Ipoh
Few suggestion
Please give him the termination letter and face the problems.
If not talk to him and try to convince him or ask his time duration to get a new job and get relieved.
Check if any other person is looking out for a change from your concern and let them go and make this person stay back.
Talk to the person and make he/she understand the new management decision and give the notice period as per the company norms.
Finally try to convince your new management by telling his/her positives and negatives which can be changed and retain the person.
15th August 2013 From India, Mumbai
Dear Upasana,
Do not make this mistake to ask any employee to leave... Morally none of us can directly ask anyone to resign & that too without any solid reason!!! As some one already told that u might get caught in very difficult situation in future. Pls have every thing written on mail by your Seniors, Sit along with your seniors+ Operations (preferably that Employees' Boss/ Dept Head) & then discuss things diplomaticaly & it shouldn't be just like a cake walk that u r directly asking some one to resign & that too without involving any Seniors. Pls think & act smartly. I know & almost all HR fellow would b aggree with me that we HR get such dauting task which is very very Risky & paining, but then its our job which we have to do, but then, why directly keep Urself in Limeligh?? be careful, as some times, in such cases, Workers take Revenge out of the office, be it Male or female.
Regards
jyoti
15th August 2013 From Japan
Dear Upasana,
I am no HR expert or know the labour laws in India. Hence, I read this thread to gain some knowledge. However, the reason for asking the worker to resign was not clear, as you have given confusing statements in your 3 posts. Hence, I have tried to summarise your posts to make it clearer. Please correct me if I am wrong.
You have excess manpower when compare to the work load.
A worker has worked for a year and has been confirmed.
The management has changed. The new management wants to get rid of this worker, as he has less technical knowledge than others. You have told the employee to resign and that the company will pay him 1 month salary.
But he is not ready to resign and says "Give me in writing that you are terminating me".
The company usually try to help the employees; they would like him to resign rather than terminate him as it reflects badly on the worker.
You are looking for a solution that will not lead to legal problems.
15th August 2013 From United Kingdom
Dear Upasana,
It\'s very difficult to convince an unwilling employee to resign. First of all check the terms & conditions of employment for any provision to retrench or terminate. And the Standing Orders as well. If ID Act is applicable to your Estt. you have to follow provisions laid down there. Most firms\' terms of apptt. provide for termination clause, probably termination or resignation with one or two month\'s prior notice or salary in lieu thereof might be the clause. Act accordingly when resignation not forthcoming.
16th August 2013 From India, Bangalore
Hi!
"He doesn't have a good technical knowledge" this reason not sufficient for his resignation or termination because if he is not capable then why did you confirmed him? why didn't you extended his training and probation period? this question will arise. Better option is go straight forward and according to the rules and regulations for reduce the excess manpower. There are some compensations you need to give an employee. I don't have much knowledge about it but you can take an advice from a good lawyer.
Thanks!
16th August 2013 From United States, Manchester
if so pl terminate his services as per his offer of appointment in writing and it means to discharge simplsiter
16th August 2013 From India, Hyderabad
Hi Member ,
I advice the following :
1) Ask your management about views on you doing a work analysis of the position in question .
2) Organisation Design involves role mapping and job analysis .
3) If the person in question does not have the required skills to perform the job ..map him into a job which is suited to him ..... this may require salary /compensation revision also .
Firing may cause legal issue , thus making some changes in the job / compensation structure one may still avoid termination .
Regards
JSL
16th August 2013 From India, New Delhi
Dear Upasana and other friends,

I feel it's worth going thro' the sentiments expressed in similar link/topic a few years ago.

https://www.citehr.com/124902-first-...e-why-pg6.html

The present query is more or less the same. It's painful to suggest some measures to assist the queriest at the same time we cannot ignore. To my knowledge termination or retrenchment on whatsoever reason might be warranting payment of compensation equivalent to 15 days salary for every year of completed service plus other F & F excepting termination on disciplinary grounds as a punishment.

Some times the compensation package is balanced/streamlined in such a way some weightage is considered for the remaining years of service of the exiting employee amending the formula i.e. to say 15 days salary for every year of service rendered or sum of salary for the left over period(salary) whichever is less. This formula is being adopted in govt.sector where units are closed as 'SICK'. Some such methodology could be adopted. However the ID Act & other relevant provision is as attahched.

Also worth reading in these links:

https://www.citehr.com/342152-retren...t-problem.html

Id Act 1947

Regards,
16th August 2013 From India, Bangalore

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I see here references to ID Act, retrenchment rules etc. I could be wrong but don't these apply to "workmen " only where the labor laws operate ?
What if the employee is at managerial level - or a salesman or a computer programmer ? Do these rules apply even then ?
Appreciate clarifications. Thx !
16th August 2013 From United States, New York
Dear Hardeep,

Good question !!!! If the employee is a computer programmer or a person doing any technical nature of job no matter how much he is earning he will fall under the defination of workman. A person working in supervisory capacity drawing equal to or less than ten thousand rupees is a Workman. Yes the Retrenchment concept shall not be applicable on the employees working under Managerial and Other Supervisory catagories. Certian other exceptions are also there.

The whole definition under section 2 (s) is reproduced herewith for a better understanding.

2 (s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person--

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
17th August 2013 From India, New Delhi
As per Industrial disput act --- If he will go to labour office then will ecome problem --- as per rules --Saction 25 N - you may be ased to pay three months notice pay + 15 days wages as compensation + Graguty + bonus ..
17th August 2013 From India, New Delhi
Dear friends, Attached are some more materials on the subject matter and a citation of SC judgment which may enlighten with relevant aspects. Regards
17th August 2013 From India, Bangalore

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File Type: doc Retrenchment-short service.doc (109.5 KB, 48 views)

Dear Upasana,
As you are making him go, it is quite obvious that he is disappointed.
If he is asking in written the reason, don't write so because as per law, if you are terminating somebody, the law requires you to have an inquiry commission to review the case and other proceedings that take a long time. It would be better if you somehow bring him on a platform by discussing mutually over this.
Only then this can be sorted out.
Shikha
19th August 2013 From India, Chandigarh
Dear Upasana
Read all the comments of follow members.
My simple comments is -
1. if he is from one year and on probation, see the terms and conditions in probation order. Normally in probation period, the services can be terminated without any notice or notice period.
2. If he completed one year, see the terms and conditions of appointment letter. If his services can be terminated by giving one months notice or pay in lieu of notice, then why we are asking him for resignation. we can terminate his service by giving termination letter. plus one months pay.
3. If he is in staff category. (more than supervisory or administrative) then no labour laws are applicable to him.
I hope this will solve your problem
Regards
M.M. Kulkarni
General Manager - HR
20th August 2013 From India, Solapur
#Anonymous
HI UPASANA

I'm new on citehr, just surfing this side I read your post

for that I'd like to share something about the subject

See there are two types of retrenchment

1) Through Disciplinary Action (For some employees who weren't proper on work)

2) Business needn't or Excess Manpower

1) For that you have to build or make record/proof for the employee to whom business needn't want more

ie through notice,conduct enquire,take his apologised letter then if he'd be proper than no problem.if he

won't be than go to your labour law consultant show him all the record if he'd satisfied then you go for

dismissed procedure (Ref.The Industrial Employment (Standing Orders) Act-1946

2) It have a long procedure to do so a) For where 50 or more employees b) where has 100 or more employees

it's long to clear here but you don't worry pl refer IDA-47(Industrial Dispute Act-1947

Sec 2(oo), Sec 25(f), Sec 25 M,N,O (N for retrenchment),Sec 25(g) & (h) plus some judgement ie 2005(3) CLR

482 (Mumbai High Court),2004 CLR (2) 309 (Mumbai High Court )
20th August 2013 From India, Nasik
Hello Upasana:
As per your above conversation "He has less technical knowledge then others. That's the only reason." & "he is working since 1 year and a confirmed employee", a very first thing which came into my mind by going through these sentences is, if he had less technical knowledge then why did your company confirmed him? Rather you would have terminated him soon after his probation period due to his less to mark performance or you would have extended his probation period.
My thought is , now it is very difficult to ask him his resignation, because he might ask you the same question and you won't be having appropriate ans to put forth or to convince him.
Apart form this, seniors would help you out more appropriately.
Regards,
20th August 2013 From India, Pune
Mr Kulkarni, am afraid you are not correct in your submission regarding the Termination process. I would urge you to re-read all the posts from experts on HR and legal affairs in the on this topic string. Maybe, just maybe, you will learn about a few basic errors most HR make - and gets away with; only because people are either unaware of their rights, or do not take the trouble to give their ex-employer the trouble they deserve.
21st August 2013 From India, Mumbai
Hi,
You can/should give him his termination letter including your genuine reason bcz the inflation is on high and if you don\'t do then maybe your company could also be suffer from the market fever very soon.Don\'t worry about legal action, bcz he /she will definitely join some other one.
My logic is behind his/her past life means who send /provide him his butter-bread before joining your company?
So don\'t worry - just carry On.
22nd August 2013 From India, Delhi
I agree and support your comment.
Such acts, without any basis in Law, severely undermine the role and reputation of professionally qualified HR professionals. The basic qualification for being an HR professional should be that as statutorily defined for Labour Officers implying a proficiency in Labour Laws.
Warm regards.
22nd August 2013 From India, Delhi
MBA hr people are not having a subject of labour laws in their institute.
22nd August 2013 From India, Hyderabad
Dear Upasna
As per Industrial Dispute Act 1947, there is a statutory procedure for retrenchment of of an employee under Chapter VA , Section 25 F of ID Act 1947.
Section 25F :- Conditions precedent to retrenchment of workmen.—No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until—
(a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay 2 [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate authority
Regards.
Sant Tomar
Assistant Manager HR -IR & Legal
Lafarge A&C India Pvt.Ltd.
8800224129
22nd August 2013 From India, Mumbai
Dear Upasna,
Management should pay at least three months salary, while we resign normally company ask us to serve the notice period or they will take three months salary from us.
Refers to the above situation company should pay 3 months salary to him. this will be my decision.
Kind regards
Hameed

22nd August 2013 From India, Madras
Dear Hameed,
It vary from company to company, that what policy we have related to notice period. Some companies have policy of one month notice period while there are some companies which have 3 months notice period policy.
In the Industrial Dispute Act 1947( Chapter VA, Section 25 F) it is clearly mentioned the procedure of Retrenchment of an employee.
Regards.
Sant Tomar
Assistant Manager HR -IR & Legal
Lafarge A&C India Pvt.Ltd.
8800224129
22nd August 2013 From India, Mumbai
Dear Upasna
Please share about the decision you have taken and how it affected by the discussion on this forum.
Regards.
Sant Tomar
Assistant Manager HR -IR & Legal
Lafarge A&C India Pvt.Ltd.
8800224129
23rd August 2013 From India, Mumbai
Hi Upasana,
If employee told you to give him in writing that the company is terminating him, you can explaining him that it will be grey mark on his CV that he was terminated from his last organization. Hence company is thinking in favor of him also.
23rd August 2013 From India, Pune
Dear Upasana,

It is amusing to see so many views. HR manager always has to tread carefully as the management expects you to take actions desired by the management. Employees can be sometime stubborn. You argue for employees you look like 'trade union leader'. Be very clear that you have been hired to do the dirty work smoothly on behalf of management.

In my view, there is no such thing that the employee can continue for ever, if he is not willing. Most of the offer and appointment letters clearly say that the services of employee can be terminated with one month notice or one month pay without assigning any reasons thereof. Similarly the employee to has the right to leave the company with one month notice. When an employee has the right to leave the company with one month's notice, why not the employer can not do the same?

Secondly, offering reason for termination or any type of removal. As per the offer/appointment letter, you are not bound to give any 'explanation' to the employee for his termination, if you take care of one month notice or payment of one month salary. However, it would be nice to give him reason, if you can.

Thirdly,

1) The outgoing employee needs to clear all his dues.

2) His Overtime Allowance, EL (as per HR rules) need to calculated and paid.

2) Certain amount can be kept as 'hold amount' for a period of one month. If no claims are found the amount would be transferred to employee bank account.

3) If you do not give any reasoning, you can give experience certificate. Please remember experience certificate does not mean 'Citation'.

In view of the present experience, please appraise your management about the legal complications that could arise if we take 'abrupt' decisions and modify HR rules as needed.

Please remember companies can spend lakhs of rupees in legal battles rather than giving thousands to employees

You are not trade union leader advocating the employees cause. At the same time you are bridge between management and employees. So, you have to balance both the extremes.

Employer has every right to terminate any employee by giving advance notice or financial compensation for the period. (Usually one month notice for temporary and three month notice for permanent).

Hope this cleared some of your doubts.

tvsrao
24th August 2013 From India, Nellore

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