Madhu.T.K
Industrial Relations And Labour Laws
Nagarkar Vinayak L
Hr-consultant
Bharat Gera
Principal Hr Consultant
Nathrao
Insolvency N Gst Professional
+1 Other

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This is to inform that My wife was working in a pharma company. they recruited on permanent roles initially as a replacement for a lady who went on maternity leave. however once the lady came back after 4 months. She is a Executive Assistant to COO however they started harassing her on work so that she should resign. one day they orally told her that they will terminate on performance grounds and then took a physical handover of the company assets. I as a husband raised a complaint to HR saying harassment at work marking copy to Commissioner of Police, Commission of labour & National Woman commissioner. based on the complaint they then sent her a Performance Improvement Plan and show cause notice as to why she brought her husband to HR without prior information.

However we raised a written complaint with Commissioner of Labour & National Women Commission. Based on the complaint they then After 2 weeks they have sent a letter of termination on the grounds of absconding. Now we showed the same letter to Labour commissioner and he has asked for a joint meeting. However the Asst. Commissioner says they can terminate the employee if he/she is in probation during her probation period. As per the appointment letter, they mentioned that 6 months will be probation period and can terminate. However in the next point it is clearly mentioned that "either party has to give 90 days notice to leave the company". Based on this point we wanted to get 90 days payment in lieu of their termination. and now i feel the labour commission is biased. Kindly advise how to take this forward just in case we do not get justice at Labour Commissioner office.
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The Labour Commissioner is not biased. A probationer's service is terminable without any notice or showing any cause. This is the industry practice and not the rules as per government service rules. However, the HR is the company has committed an error by sending termination letter quoting the reason for termination as "poor performance". This can be objected because this should be caused stigma and this is not termination simpliciter. If she was supposed to be terminated on account of poor performance, the company should have given a notice and asked her to explain her stand. The Hr should have conducted an enquiry or given the employee all possible opportunities to be heard. That is the mistake that the HR had done. Moreover, the HR had committed a blunder by appointing an employee with a probation clause etc as if the job is of permanent nature. The HR should have given an adhoc employment or offered a fixed term contract employment for 4 months. If the offer was for 4 months, no question would have arisen as to whether the employee should be given any advance notice or on what grounds she should be terminated etc, but her service would have terminated automatically on the expiry of 4 months. In the appointment order the probation is mentioned and it is also stated that during the probation period the service is terminable without notice. But what for is it mentioned 90 days notice in the next para? It should be like, on confirmation, the service shall be terminated by giving 3 months' notice. This is the mistake that the HR has committed.

Now, regarding harassment, asking an employee to leave is not a harassment and this can happen to any person who is not performing. Just due to this if the husbands start complaining against the HR before the District Collector or Women's Commission or Local Complaints Committee constituted as per Prevention of Sexual Harassment at Workplace Act, the entire HR fraternity will be in trouble. If that is the situation, then the HR forums will raise and they will start sending messages which may even lead to a complete stand still to her career. You as a husband (please read what you have written) has no right to ask for the rights of your wife at her company, you can exercise your rights at home.

This is a case study for many HR persons who take steps without reading the clauses of appointment orders. If you refer the case Anand Lenin Vedanayagam Vs The Registrar, Pondichery University, the Madras High Court has found that the employer is free to terminate the service of a probationer without assigning any reasons but when it comes to a situation that the termination is on the charges of any misconduct, the act of termination should be done after affording opportunities to the employee to be heard since the termination in the latter case it is a stigmatic order and not a termination simpliciter.

Madhu.T.K
A probationer can be terminated if one's performance is not satisfactory during the period of probation. Nowadays it has become a trend in the industry "hire and fire'' on ground of probation. In the instant case HR department has committed several faults i.e. issue of show cause notice as to why she brought her husband, Performance Improvement Plan and termination on the grounds of absconding. This case can be tried in the State labour court/Tribunal against the order of the Labour commissioner, as the concern considers the judgement is biased. Now the concern has to take the help of a good Law Consultant dealing with the labour matters with all documents including the appointment letter.
The laws & rules are same to Employer & Employee both. But those workman shown courage to challenge have yield result. In this matter the lady must fight against her “Termination”. And in the matter Mr. Madhu T.K has rightly pointed out some key points, fight on ground of those averments, rather claim of three month notice etc. If the appointment letter have clause of three month notice has to give notice prior to termination if terminating before the probation period.
Dear colleague,
As rightly captured in the observations above, the company has chosen to flout the conditions in the appointment letter and the principles of natural justice in terminating the lady. The acts of the management of terminating services without giving a fair opportunity to explain the alleged poor performance and without giving notice of 90 days is prima facie blatant violation of legal provisions and is most fit case for challenge in the Labour court.
The high handedness on the part of the errant management must be taught lesson.
Please fight out at all fronts- legal and social till management is brought to their kneels.
Regards
Vinayak Nagarkar
HR-Consultant
HR department has shown lack of professional competence.
Why issue unnecessary letters to a probationary employee?
Issuing PIP letter indicated a desire to retain employee?
Otherwise an employee on probation could be removed as per offer letter.
If the Company has stated 90 days notice period,they need to honour it and pay 90 days salary or keep employee for 90 more days and then decide to show the exit path or retain etc as they feel.
Lack of professionalism by HR is obviously clear and they need to read more on law and HR rules first.
Dear Friend,
1. Everybody above has endorsed that the service of an employee can be terminated on the grounds of performance, that is no doubt absolutely correct but this authority with the management is not unfettered. Non performance has to be justified in the form of recorded feed back and written commitment from employee that s/he intends to work hard to improve on the feed back. This is nowhere mentioned in the post.
In case prior documented feed backs are not there, its a strong case to fight.
2. Since it was a leave vacancy the HR should have appointed on a fixed term vacancy instead of against permanent vacancy as they did in this case (Blunder on the part of HR, now a days the HR thinks that they can get away with anything they do and nobody can stop them).
3. Husband has no legal authority to intervene in the matter and make complaints. His actions have further aggravated the situation.
4. Normally companies have 15 days or 30 days clause for termination during probation. I doubt there is a 90 days clause. Please share the relevant clauses of the appointment order to advise properly.
5. Assuming that there is a 90 days clause, then you have a point to take the matter to the court. In case your wife comes under the category of workmen then to Labour Court/Tribunal and in case she does not come under workmen category, the civil court for claiming the compensation.
Warm Regards
Bharat Gera
HR Consultant
9322404765
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