PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Industrial Relations And Labour Laws
Asso.prof.(commerce & Management)
M S N KHAN
Senior Consultant (security)
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vini.wondersThis is seriously almost like harassing an ex-employee. I'm really surprised that how deleting data is categorized as security breach and why an IT Company has no backup solution! even a moron knows how to retrieve deleted data?
Hope the employer didn't have any previous grudges or issues with her. Anyway in my opinion, firstly she can send a Formal notice herself or through an Advocate to the employer (with time specification), if the Company does not respond, then she can file a letter to Asst. Labor Commissioner and then within fifteen days the Asst.Commissioner Office will call her and the company also for conciliation.
Even then if your issue remains unresolved than you can file a case in a labour tribunal.
Note-Pls consider taking legal advice on this from an Advocate.
From India, Delhi
Madhu.T.KBefore approaching the Labour Department please make sure that she was working as a worker. Normally IT professionals would not like to be referred as workers till such a situation when they become out of office, still, there are quite a large number of employees whose status of employment by function will not be of managerial or supervisory due to which they become workmen under Industrial Disputes Act or the Shops and Commercial Establishments Act.
Now the question is whether the dispute is with regard to illegal termination or not issuing relieving order? If the former is the issue, let me say that the Manager who terminated has done a mistake of law (if the professional comes under the definition of workman only!!) by not following the required procedures like issuing show cause notice/ charge sheet, conducting enquiry etc. In the latter case, I don't think that the 'law' will help her but in a conciliation there can be a request (yes, the conciliation officer, say the Labour Officer or Commissioner, as the case may be, can only request for a settlement) from the conciliation officer that a relieving cum service certificate without showing the reason for her leaving, ie, termination from service for dereliction of duty, may be issued.
Regarding the charges I have difference of opinion, that, there may be back up and the items deleted may be restored but that is not the issue here. Deleting a customer file or information is dereliction of duty which is a misconduct. Nobody can prove that it was done by mistake or intentionally. Therefore, we should take it as an act done negligently and take action against the employee. Only thing is that before terminating the employer should have given opportunities to prove his/ her innocence. If she could prove that it was deleted by mistake, a termination could have been avoided. That is why i said that the act of termination without conducting enquiry was the one which went wrong and not the non issuance of relieving letter which could be issued saying that the employee " was relieved after having been terminated for dereliction of duty". What is the use of such a relieving order?
From India, Kannur
AnonymousThanks a lot for response. Your reply's and suggestion provided are really helpful for thinking and taking next step.
@Madhu: She and her manager always having issue (as she is having capability of replacing his position). After this incident they recovered files next day but they didnt gave chance her to explain what happened(terminated on that day only). Still in several mail she mentioned about what happened exactly and asked for official meet to explain in detail. Manager is refusing to meet official and below is reply from Manager after several followup.
"As mentioned in my email previously due to the serious nature of your intentional actions which led to your termination, there will no relieving letter which will be issued at this stage and the company reserves the right to pursue legal action if deemed necessary."
I am thinking to take legal action against them through lawyer. Thanks a lot again for comments and suggestions. More suggestions are welcome.
M S N KHANFrom the post I understand that she is a worker and would bd covered under labour act. When our well paid pilots get relief from labour courts, I don't understand why she should not approach them for relief. She should fight against her illegal termination.
From India, Thane
It may be illegal to straight away terminate an employee without following the necessary formalities. This itself may lead to invalidating the 'termination' and reinstatement with or without back wages. It's already 6 months elapsed. This delay also might work against the termination. I'm not sure what are provisions of law applicable to this Estt. and the employee. Depending on this follow up action could be taken by the terminated employee.
From India, Bangalore
email@example.comI also agree with Kumar for termination there should be proper way, that is show cause notice, reply etc., but it is too late now to dig out the past. Last with regards to relieving Letter, termination itself is relieving so there is no relieving letter you can demand. You can ask for other documents if anything pending.
From India, Ahmadabad