Dinesh Divekar
Business Mentor, Consultant And Trainer
Saswatabanerjee
Partner - Risk Management
Bijay_majumdar
Freelancer
+1 Other

Thread Started by #Anonymous

Had an employee for a year working as an coder with poor performance. He resigned a month back and has been asking for his Exp & Reliving letter along with last month salary. All what he wants is genuine and are rightfully what he deserves but apparently just because of a few delayed weeks from us in giving him what he wanted, he has filed a legal case on the company with false allegation like daily overtime for past one year. And now he is asking compensation for it which goes in lakhs.
Apparently he cant prove the overtime and so we are not worried legally about any damage but I on personal note would like to give unsatisfactory comments in experience letter.
Any suggestions?
5th December 2016 From India, Thane
By giving unsatisfactory comments in experience letter will be a gain to the company ??? if not then refrain from that. It will be assumed that you have given unsatisfactory comments so as to teach the employee a lesson or an ego satisfaction. If we cannot help an employee then we should not spoil their career too. This does not mean that the employee has done a great work, the company should give a befitting reply, as per my view.
5th December 2016 From India, Ahmadabad
You can give a mere service certificate indicating just his tenure of service with you without commenting on his performance.B.Saikumar, HR & Labour Law Advisor, Navi Mumbai
5th December 2016 From India, Mumbai
Dear friend,

The issue has been blown out of proportion from both the sides. By the way, are you from HR or you are the owner of the company?

Performance of the every employee cannot be the same. Few are smart and few laggards. Against this backdrop, for the under-performance of one of the employees, you have removed him. Can there be any severe punishment than termination of services? But then it appears that you had been vindictive. By doing this, collateral damage is your current predicament.

Have you received summons from the court? Before receiving the summons, did you receive notice from the lawyer or has the petition been filed without giving notice? If you had received the notice then why you did not call the employee and clear the dues?

Well gentleman, cases in the court are not fought by taking high moral stand. False allegations is a norm in all types of cases and labour cases are no exception.

If you have received summons from the court, then when the very first hearing takes place, ask for referring the case for the mediation. Before doing this, call the employee and work out the suitable deal. Naturally, this will cost more but instead of full-fledged litigation, cost will be less. You have given invitation to the trouble. In Hindi it is called as आ बैल मुझे मार whose English equivalent is to stick one's chin out.

The case needs analysis from management science point of view also. When the employee was recruited? If in the recent past, then it is recruitment failure? Who were involved in the recruitment of the employee? Have you taken action against them? Why his performance was subnormal? Did you investigate the causes? What kind of support his HOD give to pull the performance? Who gave him motivational support?

The second failure is communication with the employee. Occasionally, there could be delay on settlement of the dues. Were you in constant touch with the employee and moreover how this delay was communicated?

The next failure is improper separation from the company. Why there was delay? Who was responsible? Is it system failure or there is system but people failed the system? If latter, what action will you take for the unreasonable delay?

Now you say that you wanted to give negative remarks in the experience letter. In spite of receiving court's summons, if fiendishness within you pops out, if wisdom has not prevailed upon you, then god bless you gentleman!

Thanks,

Dinesh Divekar

P. S.: - Possibly, my post could be strong worded. However, it is more on unprofessional handling of the entire entire sequence of events. Therefore, please do not take it personally.
5th December 2016 From India, Bangalore
Dear ANNONYMOUS,

Greetings .......

You got advice from many of our learned friends here and probably have found solution to your problems by now. I better won't make a fresh venture to load you with more advices but would breath fresh looking into other aspects that might have caused problems to you.

If 20% of what causes Poor Performance is attributed to an employee, 80% of it is due to poor Staff Administration and lack of Guidance and Supervision from the Organisation. I hope all here would agree that an Employee gets selected against a vacancy after many rounds of interviews and confirmation that his intelligence, attitude & job knowledge is just right for the position he is appointed for. Also, all employees strive hard to establish himself in the Organisation Hierarchy and is not expected to falter when put to work.

Sure there would be some endeavour from the Employer for "Job Fitment" of a newly recruited Employee that initially tunes-up a fresher to Work Methodology to adopt Departmental Procedures & Mainstream. Proper "Supervision" & "Guidance" are other two factors which shape-up an Employee for adoption of "Departmental Expectations".

I won't for a moment doubt intentions of the employee who you say has put up a Legal Case against your Company. I rather am sure that the man is pushed to initiate Legal Proceedings by "Organizational Misbehavior" that snatched away valuable "Career Time" from him.

I suggest a procedure that be initiated to identify such Organisational shortcomings to ensure no repetition of similar case in future.

Regards,
6th December 2016 From India, Pune
I will disagree with the members who have given their opinion.
Assuming you are correct in stating that the delay was by a few weeks, and the employee in question has filed a case with false complaints, then you should not give him an experience letter till the case is resolved or withdrawn.
You are required by law to give him an experience letter and you can make a combined relieving and experience letter. You are fully within your rights to state in it that the employees performance was unsatisfactory. Nothing in the law prevents you from doing it, unless its a false statement amounting to defamation.
And keep a note in the file that when anyone calls for background verification, let them know the employee had filed a false case against the company that was dismissed by the court.
6th January 2017 From India, Mumbai
#Anonymous
I agree with Mr. Saswata Banerjee, that stating that :-
I will disagree with the members who have given their opinion.
Assuming you are correct in stating that the delay was by a few weeks, and the employee in question has filed a case with false complaints, then you should not give him an experience letter till the case is resolved or withdrawn.
You are required by law to give him an experience letter and you can make a combined relieving and experience letter. You are fully within your rights to state in it that the employees performance was unsatisfactory. Nothing in the law prevents you from doing it, unless its a false statement amounting to defamation.
And keep a note in the file that when anyone calls for background verification, let them know the employee had filed a false case against the company that was dismissed by the court.
6th January 2017 From India, Mumbai
Dear Mr. Banerjee
If you have gone through the poster's remark which is "I on personal note would like to give unsatisfactory comments in experience letter." wherein it shows that the poster would like to teach him a lesson for filing the case legally which means the poster has taken the issue personal then professional. We should give a befitting reply to the employee if need arise and if the employee is at fault rather then giving false remark just to satisfy one's ego.
6th January 2017 From India, Ahmadabad
Ok, let me clarify / correct my post
I didn't say put false statement on the relieving letter
The poster said his work was unsatisfactory
So, that can be out in his experience certificate.
And that he had put a false case against the company can also perhaps be noted.
Neither of that would be false IF THE ORIGINAL POSTER WAS STATING THE TRUTH
7th January 2017 From India, Mumbai
Dear Mr. Banerjee
With due respect
The poster stated in his query that the employee was a poor performer, in that scenario what action has been initiated by the employer/poster e.g. counseling, training, warning etc. which is not mentioned by the poster.
Now when the employee has resigned he deserves (even the poster also agrees) his experience/relieving letter which was not given to him. In frustration after a month (maybe after due follow ups) he has send a legal notice with all the strong points (which may be false a few) to the employer so that he can have a legal stand on his demand of his experience/relieving letter.
Now since the employer has not taken any initiative in correcting the poor performance during the employee's tenure is worthwhile to be noted. At the end when the employee has moved legally for what he deserves the poster want to spoil the career of the said employee which is hurtful. That's all what my view states.
7th January 2017 From India, Ahmadabad
Hi ,
Here in this case,my view is that employee in question if gone legal,then the case should be handled with the legal limits.
Second,As HR I personally feel that an amicable exit of employee and an amicable release/clearance given by the employer to employees is always beneficial to both the parties and sends positive vibes in favor of company and employee as well.Having said this ,hr has the very responsibility to ensure right hiring,right induction ,training, prolonged retention and performance and talent up gradation etc,and all this be supported by the management through established process,procedures and documentation.An employee can never dare to go legal unless provoked, instigated or harassed to that level. to conclude in this fast moving world time is valuable and companies don,t have time to waste around such legal and unproductive activity therefore best way is to find a amicable and respectful way out to resolve such issues within least time.
8th January 2017 From India, Vadodara
Agreeing with Bijoy, the case needs to be handled from HR perspective rather than from legal perspective, considering the minor nature of the issue and try to arrive at a win-win situation.The judgement made by the poster that he is a poor performer is open to question since the other party is not heard and there may be factors like biased supervisor or poor feed back to the employee or' poor training etc.which might contribute to poor performance also .Similarly, the poster's statement that the allegations made by the employee about OT are false, is also unilateral. He may be true or he may be false but the statement is open to question again.It may also raise a doubt whether the management wants to counter his OT claims by labeling him as poor performer and so terminated him to avoid further claims.

The management has already taken action for his poor performance by terminating him which itself can be open to question by the employee if he feels such termination is unjustified.is not satisfied with his performance. Now, the employee accepted his termination and what all he wants, is only an experience certificate.To have a win-win situation, it is fair that an employee who worked in a company deserves an experience certificate.If the management does not want say that his performance is not satisfactory, it need not and but then, can issue a simple service certificate that the employee worked in the company from ..... to.... and handled the job of ....... and he was relieved on so and so date.That may settle the issue.

As HR professionals, one should make the severances/separations smooth and peaceful in the interest of employer branding as reputations reach the market faster than light in the technology driven communications and this globe is made smaller by technology and who knows we may bump into each other sometimes so early, finding, to our surprise, that the so called poor performer, is now a Vice-President in a company since each of us grow in our time zones.

B.Saikumar

HR & Labour Law Advisor

Navi Mumbai .
9th January 2017 From India, Mumbai
Sorry, there are two mistakes in the second para.
The sentence is unjustified.is not satisfied with his performance" shall be omitted and the sentence ."If the management does not want say that his performance is not satisfactory," shall be read as "If the management does not want say that his performance is satisfactory".
,
Thanks
saikumar
9th January 2017 From India, Mumbai
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