Riteshmaity
Labour Law Advocate
Rdsyadav
Educator, Management Consultant & Trainer
ArunRaja.b
Senior Software Developer
+1 Other

Thread Started by #ArunRaja.b

I am working for a private IT company and applied for resignation on Jan 11 due to chronic back pain(slip disc caused by bad chairs provided by the company and they are being replaced fast now ) and was serving a np of 45 days which is uploaded to end on Feb 26th. On Jan 25th my mother suffered a heart attack and also suffering from severe case of H1N1(swine flue) and admitted to ICU for 7 days and i left to attend her informing my HR and sent an official email by 1st Feb and informed that I will be back only by Feb 13th. Also kept the HR updated on the status.
But now the management had sent serious of emails claiming that I have been ABSCONDING from WORK and my work had always been poor and I have very poor code of conduct with other employees(if yes why they hadn't informed earlier) and had with held my Jan salary and I will have to pay any damages to the organization because of me absconding.
Please help me with the situation because I don't know how to react.
8th February 2017 From India, Chennai
Dear ARUNRAJA.B, Presuming that you have stated facts, consult a lawyer and send them a legal notice. In case of no reply or reply refuting your charges, approach court. Best Wishes, Col.Suresh Rathi
8th February 2017 From India, Delhi
Kindly give a proper reply to the email denying all the allegations and charges. Specifically deny that you are not liable to pay any damages to the company. And only on those score, the company cannot withhold salary, so demand salary.
I have not gone through the exact content of the letter. But if it is very serious in nature with serious allegations and demand of damages, it is better to get the reply drafted by a lawyer on your behalf. If you do not properly deny the allegations at this stage, the company may try to use such allegations against you at a later stage, if required.
8th February 2017 From India, Kolkata
Thanks for the quick responses.
I am currently looking to draft a reply myself since I am still with my mother and will be resuming duty on 13th.
Not sure if it is OK to ask the below question in this forum, but let me.
If I have to approach a civil lawyer and take a case later(if needed), what would be proceeding costs and on a minimum scale, how long will the case go on.
Also I am little worked on if it turns into a civil case, how will affect my future career with other companies.
P.S.
I have nearly 10 years of experience and have worked for 3 companies(2 billion dollar MNCs and a start-up) for a minimum of 2 years each, and have always had good repo with all the companies, with one company having offered huge stock options and I had given that up to work for this start up.
8th February 2017 From India, Chennai
you should hire a lawyer who deals in labour matter and industrial disputes. not all civil lawyers can deal with it. visit the labour courts and tribunals in your area to find out the specialised lawyers.
and regarding cost, it depends on the seniority of the lawyer and place of practice. and time of court cases cannot be predicted, frankly speaking. it depends on various factors.
legally civil cases wont put any impact on your professional life.
9th February 2017 From India, Kolkata
"This is extremely unprofessional of you and as a direct result of your irresponsible behaviour you have brought the entire development work to a standstill resulting in substantial losses and damages to this company.

The quality of your output as a direct consequence of you not taking your job seriously is very poor. There is virtually no documentation of any of the work that you have done and there are critical deliverables which you have been promising over a period of time (some over 3-4 months) have still not been delivered resulting in substantial delays and financial losses to the company. The code is of extremely poor quality and virtually needs to be rewritten.

Please note company reserves the right to terminate your services during the notice period as we do not think you intend to serve your notice and will recover all dues owed to the company by way of notice not served and any other dues owed to the company.

Please note that notwithstanding the termination of your services, the company reserves the right to pursue legal action to recover any monies owed and claim any damages incurred as a result of your poor quality of work and absconding from work."

Above is the email from the management and on second reading, I believe they might have already terminated me.

Now I have following questions

- while I am in notice period, can the employee consider me absconding from work after I have given proper email explaining my status and the date by which I wouldnreturn
10th February 2017 From India, Chennai
Missed other questions in the above post.
- can company claim damages due to poor performance when until that date I had never faced such allegations from management even after working for 4.5 months.
- without informing me, my official account is locked and I can't login to the same and then send all allegations email and claim I didn't respond back and forward those emails to my personal ID
- claiming that I am harassing employees for calling HR and next senior in line person before all these barrage of emails of accusation started
Also, please suggest how I can find the labour commissioner email id for Bangalore?
10th February 2017 From India, Chennai
Dear Arun,
You need a job is your top priority.Please search out small, big any thing and join assumimg that this company will not give you any relieving certificate. Second important advise to you is instead of sending your reply of mail sent by your employer, please consult a Lawyer, as a precaution time ahead so that lot of reactions came upfront so for .and at later stage possible also , they are legally defend-able and you are not at any unsafe that time.
Regds.,
RDS Yadav
10th February 2017 From India, Delhi
@ARUNRAJA.B

The email of the company sent to you though contains charges/ allegations against you and even proposes punishment like termination and subsequent recover of dues from your, yet it cannot be called a termination letter technically.

Your queries are replied below:

- while I am in notice period, can the employee consider me absconding from work after I have given proper email explaining my status and the date by which I wouldnreturn

In the above email there is no charges of absconding but only related to non/ poor performance. From where did you find the charges of so called absconding? Moreover, under labour law, there is NO term as absconding. If you remain absent without permission, it is called unauthorised absenteeism. If you have proof of intimating the company regarding your absence and genuine ground/ medical reason then you have a good case to defend yourself.

- can company claim damages due to poor performance when until that date I had never faced such allegations from management even after working for 4.5 months.

Before claiming any damages which is directly attributable to the action of an employee, the employer has to give reasonable opportunity to employee before claiming such damages. But broadly speaking employer cannot claim damages for poor performance. It may depend from case to case though. E.g. if you lose you lose a mobile phone of your company due to your negligence, then they might recover the amount from you. But if you are unable to convince a customer/ client for some deal, then though it may be treated as poor performance but for that damages cannot be recovered.

- without informing me, my official account is locked and I can't login to the same and then send all allegations email and claim I didn't respond back and forward those emails to my personal ID

Since there is a bitter scenario at this stage, it is better to communicate in writing only with the management. Instead of emails, try communicating with letters through registered/ speed post.



- claiming that I am harassing employees for calling HR and next senior in line person before all these barrage of emails of accusation started

How they are claiming that? Instead of verbal discussion, use written communication in order to avoid any allegations.

Also, please suggest how I can find the labour commissioner email id for Bangalore?

I am not sure but you can google or ask a labour lawyer/ union etc for details.
11th February 2017 From India, Kolkata
@riteshmaity

Thanks for quick replies, really appreciate it.

I was going through the emails fwd’d by the management and find something very suspicious.

Management said they had earlier(I believe before 2nd Feb) emailed 3 mails(Formal notice for being absconded from work, Warning for Disciplinary issues, and my performance and deliverables are completely useless) to my official id(Gmail for Business), and since I cant login to my account(they blocked it by the way), they forwarded the same to my personal email id.

What is suspicious from that is, I have my official email account is setup in my mobile and they are updated in my mobile up until 3rd Feb and I haven’t found any such mails from them.

Also, from the emails forwarded by them, “From address is empty, Date is also empty”, which can be done only by editing the message before forwarding to the respective address.

I cannot prove it nor I can, until I have access to my official account.

But if indeed the emails forwarded by the management to me are in anyway manually edited by them with false data, will it have any impact in proving that indeed all my managements allegations are false and get my due salary?

P.S.

I am meeting with a civil/labor lawyer tomorrow as a consultation to assess the gravity of the situation.
11th February 2017 From India, Chennai
Irrespective of the authenticity of the emails, any allegations made against you has to be proved by conducting domestic enquiry where the company has to provide you an opportunity to defend yourself in observance of principle of natural justice. The management cannot arbitrarily take any decisions violating the laws of the land.
Since you are meeting a lawyer, hopefully something fruitful would come up. Please share your experience too.
12th February 2017 From India, Kolkata
I went to the office this morning by 10AM, but was informed by HR that Director had asked me not to come until I discuss with him on extending the terms.

Below is the content.

"Arun,

Thanks for your email which is rather long and impossible to read. It is full of contradictions and not factual. We do record all calls whether skype or phone and I have you on record committing to certain deadlines which you repeatedly failed to meet. I am happy to provide you with plenty of proof from your coding which points to hard coding at numerous places and just poor lazy coding.

I appreciate (and as you have acknowledged) that since your joining you have had plenty of personal problems with your and your each and every family members health etc and we have as a company and individuals been very generous is accommodating your troubles, however, the company is not obligated to consider every personal problem that you have, especially since it has started disrupting the work, affecting the morale of other employees who really work hard and honestly.

As you can understand that in my position as senior member of the management and in the capacity of a leader of the company I cannot allow such behaviour to continue and turn a blind eye to it. I can neither allow others to be demotivated and give the impression of favouritism by letting you get away with every breach and misdemeanour.

As such you cannot choose to come in and be absent without leave from the office any time you please regardless of your personal problems.

Please don't come to office until such time as you are able to confirm your extension of the notice period in accordance with the terms of your contract. I am happy to speak to you tomorrow and hopefully we should be able to reach an amicable resolution.

I shall call you at 3pm on your phone so please confirm."

Also, met a civil lawyer today and he advised me to reply to this email saying that he can me on phone tomorrow and we shall discuss and discuss 3 points.

> how long should i extend my time, and since I am still in probation I should be submissive

> immediately unlock my official account (doing so I can prove that he indeed manipulated emails that he had forwarded to me)

> immediately release my salary

My main question is:

> can an employer simply ask me not to come to office just like that

> If i dont agree to his terms, what will happen to my future days and applying for other companies

> what will happen to my notice period days starting now till Feb 26th when it was supposed to end.
13th February 2017 From India, Chennai
> can an employer simply ask me not to come to office just like that
No. If an employer asks you not to come to office it means refusal of employment which is equal to illegal termination. However, if the employer asks you not to come for any specific reasons (as in your case) you will remain in employment and will be entitled to salary.

14th February 2017 From India, Kolkata
This is the latest development and below is the latest email from the Director

"Dear Arun,

You are burning all bridges with your absolutely non-sensical accusations bordering on pathological lying.

If you continue this way then I will have no options but to terminate you with immediate effect.

Please note that there is nothing unethical and illegal of stopping a rogue employee to enter premises if I have sufficient reason to doubt the integrity of such employee. At the end of the day I am duty bound to protect my premises, my employees, Obsessory's systems and software assets. I would implore you to seek legal counsel so that you have a better understanding of your rights.

You had a "slip disk" and you were being treated by injections. Your wife had asthma and your dad needed a transplant and your mother had a heart attack.

Please provide medical certificates for all these. Failure to provide evidence could lead to your termination of your services on account of breach of contract. Please note that Obsessory will retain the right to proceed with legal action against you for trying to defraud Obsessory on false pretences and lies without intention to deliver any assigned work throughout your stay.

Please note that I am not obliged to seek an amicable solution but am trying to do so for you career's sake but you are making things very difficult by your aggressive and confrontational attitude, which leaves me no choice but considering initiating legal proceedings against you to claim the monies you received from Obsessory so far as salary on material breach of the contract.

Most noticeably you have not so far acknowledged that you will extend your notice period and serve 45 days as per the terms of employment contract with us and complete the agreed tasks inspite of my asking so. I firmly believe that you do not intend to serve your notice or deliver any assigned and agreed tasks. If you do then please confirm that you will do so in writing and I will have a legal bond agreement made available for you to sign after which you will be allowed to resume your duties and your full and final settlement shall be made once all such legal obligations are met by you.

I shall not be engaging in any further dialogues with you until I get a written confirmation by tomorrow 14-Feb-2017. "

As advised by my civil lawyer, I had very humbly replied to his email saying I am not being aggressive, just asking few clarifications on why I am being accused all of a sudden. Also provided all the necessary proofs of mine, fathers and mothers medical report. And informed I had always intended to completely serve my notice period and since 19 days of it had been missed due to my mothers medical emergency, I would like to extend my notice by 19 days and serve the same".

Till date I had not showed to management, that I knew of the email dates that they have changed to make it look like it was sent earlier and I didnt respond ealier itself.

Explained in this thread: https://www.citehr.com/579062-salary...-employer.html

Now after replying to his above email, I have replied to the email forwards saying that I had checked my emails up until 2nd Feb-17 and did receive any such warning/notice emails until 5th Feb and I have reasons to believe that the date was changed before forwarding and asked them to send the email again to clarify our doubts.

Any suggestions on what I should do next or idea on what would the management would do next ? Because, I know I have all the evidence from my side, but still if it goes to civil case, management has the resources and more over he(Director is an NRI) in London freely.

Some say, that I should first file a civil suit for breach of contract from employer by tampering with the emails to gain superiority over me to make it look like it was sent earlier and I didnt respond.

Others say this would never stand a chance in court and let it go and simply just do what the management says.

I am very depressed and deject with these turn of events, given that I just saw my mother nearly dead and just recuperating.

Any advice please?

P.S.

Also, please let me know how to make texts bold.
14th February 2017 From India, Chennai
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