Dinesh Divekar
Business Mentor, Consultant And Trainer
Nagarkar Vinayak L
Hr-consultant
Nathrao
Insolvency N Gst Professional
Shritik Nair
Manager Hr

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Dear All
Need your suggestion to resolve this issue, there is a Sales employee who is based at Delhi, his performance was not upto the mark, so considering his performance the management decided to terminate him, we have send him a termination letter through registered AD, and got his acceptance,
Now he has send a legal notice to company stating illegal termination of service, and he want to continue his services with the company, how to tackel this issue, we have all the proofs of his performance from his date of joining.
Please guide how to handle this issue and get rid of this employee without any further hassel.
Thanks in advance
Kumar Nair
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Termination proceedings need to be backed up by principles of natural justice.
Has the person concerned been warned and counselled?
Has his non performance been recorded and informed to him and chances for improvement given?
Has he been paid his dues as per offer letter on termination?
He has accepted the termination and now his case is weakened to that extent.
On what grounds did he allege illegal termination?
Your advocate can take up the matter of reply to legal notice in appropriate manner.
Legal challenges are to be met legally and if your documentation is proper,there should be no cause for worry.
Dear Shritik Nair,
You have received notice from employee's lawyer because the termination is illegal. Yes, it is illegal because it appears that before his termination, you did not conduct the domestic enquiry. Principles of natural justice demand conducting such enquiry.
For Mr Nathrao: - The fifth sentence of your reply says he has accepted the termination and now his case is weakened to that extent. Acceptance of termination letter does not weaken the case of the employee. He is not expected to be expert in the field of labour law. Labour courts and various high courts have given ruling that termination after issue of show cause notice is also illegal. Nothing substitutes domestic enquiry and furthermore it should not be vitiated.
Thanks,
Dinesh Divekar
Dear Shritik Nair,
It is already Mr Nath Rao & Mr Divekar has given their opinion in the matter on face of information furnished in post.
As per you the employee has signed the copy of termination as his acceptance, which you sent him through registered post. If the case be then there is nothing to worry. But if you have the copy of the acknowledgement of the postal AD, then it is a matter of worry and concern.
As an HR you should act according to the norms. But in the instant case you have not applied your mind rather gone whimsical. Did you refere the clause of appointment before termination. The termination should have with notice but without an allegation.
Your facts on the post are incomplete and you have not furnished the contents of the notice received from the advocate of terminated employee. I do not think anyone will be in a position to suggest ananything good.
If you could have contacted before taking any action from any member of the forum, they could have suggest how to move.
It is better for you to hire a good lawer deals the labour cases in High Court or Tribunal for this.
NB: For esteemed members; Pl discuss on following
[The termination should have with notice but without an allegation.]
Dear Mr Dinesh,
Thanks for your comment.
I clarify my comment in the 5th line is based on positive answers to earlier queries.
If he has been counselled,corrected,adviced,warned earlier regarding poor performance he can be given termination simipliciter w/o stigma
Keeping that in view I felt that willing acceptance of termination letter at that time w/o objecting in writing can give a presumption of voluntary acceptance mode of terminating the job contract.
However reply is based on surmises and assumptions as given in the first 4 sentences.
Dear colleague,
You should have consulted before taking action of termination or shared contents of your termination letter as well as lawyer's letter to advise properly.
I think the person has acknowledge ed the receipt of the termination letter and not the action of termination. Otherwise why would he send lawyer's notice.?
Now the ball has gone to legal court. Reply him after obtaining labour law expert's advice and proceed.
Regards,
Vinayak Nagarkar
HR-Consultant
You have to make him continue his services, modify the termination letter as warning letter. And you can warn him that if there is no performance found within 2 months or so we will terminate you by issuing termination letter.
Note that receiving the letter by Registered post doesn't mean that he has accepted. He can go to LO and can win the case easily if you have not issued any warning letter officially to him before.
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