Dinesh Divekar
Business Mentor, Consultant And Trainer
Cyalexko
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Hello All,
Sincerely looking for some direction, advice and even possible representation - in regard to recovery of dues from my employer.
Please excuse this rather long essay of my grievance.
I was working for this company for just over two years and all through that period the salaries were not being paid in time. However he has for the past few months (from nov'17 until Feb'18) not been paying me. I work as the international business head for the company looking into South East region. In my last recent trip to Jakarta which was for 3 weeks, I returned back on feb 10th and resigned on 13th FEB - indicating the same on whatsapp which he read and responded saying he will meet me and discuss. On meeting him two days letter he refused to take my resignation letter and asked to meet again the next week when he thinks of the appropriate transition process. The second meeting never happened and through a series of messages on whats app and some on email (emails were never responded to) - that went back and forth, I eventually received my resignation letter submitted this feb only a couple of days ago. The reason I am writing this on here is that the resignation letter came with a very strange comment - which to quote is “your resignation accepted from 13th Feb 2018 as communicated to me. Also since you were not in a position to be in Indonesia till March as desired by company your resignation accepted with 3 months notice pay deduction - unquote". The reason I was unable to be in Indonesia I wrote to him in an email and now pasting the same verbatim “Your demand that I be there until March was untenable as first and foremost the visit was organized with a time span of 3 weeks. These 3 weeks as you know require very high coordination and are planned and set well before our travel with the influencers and decision makers. My staying there after 3 weeks to get immediate results as you speak of, would not help in any way as the people concerned were already met and communicated with and the fact that they being very senior and extremely busy – would not appreciate the frequent intrusions into their time and in that I would do very little to further their course of action to suit us by imposing myself on them. Secondly you had not paid me for 3 months earlier (and this was the 4th month running) and on my enquiring and asking for the salary - you so nonchalantly informed me that you have “no order bookings and no cash flow”. You did not for one moment consider that I was away for 3 weeks from home every 45 days and that I had responsibilities at home I needed to address. Your delay in paying my salary was causing extreme situations at home – and in fact I had to borrow to make ends meet due to the lack of fluidity you were causing. To run a home without salary for close to 4 months - in spite of working and not receiving any monetary gain is highly demoralizing. But you were not worried in the least for me. But I was and I needed to be home. Thirdly you reduced the daily allowance from 125 dollars to 80 dollars (without even informing me) and upon my insistence and also to your knowledge of that sum being insufficient you raised it to 100 dollars. Over the last 6 months you have accompanied me on every trip for a week and you are aware that taxis cost around 700,000 thousand rupiah (55 dollars approx) itself. The remaining 45 dollars would just about with caution suffice for all other expenses. Considering your recent attitude of so dismissively suggesting that 80 dollars would suffice – I was not going to put myself in a situation for any unspecified length of time with highly limited resources wherein for some emergency in a foreign country as was the case in Thailand - I would not have the basic resources to fall back on.
Also for the fact that in spite of working for you and traveling for work and in spite of me asking you many times to insure me for my travels – you did not do the needful. You asked me to pay the premium of 25000 from my end and have it reimbursed from you. It was definitely not what a considerate owner would do. Considering the past and my history with you, I would have waited months for the amount. So though the above points are included they are by no means limited to my decision to resign and that’s why when I came back on Feb 10th – I resigned on 13th February after due deliberation.
In between all of this He was also communicating to me that handover needed to be done first to settle my dues. This he said is a “must” for my dues to be settled. I clearly asked him what the connection was and that it was not correct, as settling my previous month’s salaries of November and December 17 and of January 18 had no bearing on the handover, as handover is initiated once, one resigns and this I did only in February 2018. So how was my dues connected to handover?????
However the handover process has been completed and in spite and irrespective of all that was transpiring I have provided a very detailed and comprehensive handover.
My contract states a 3 month notice period.
My issue is that he says he will not pay me all my dues but will deduct 3 months advance notice as (mentioned in his comment on my resignation) and in his doing this I believe he did it with malicious intent cause - He did not pay me from November onward until Feb.
When it suited him he used the backup on pending salary mentioning my inability to continue in Jakarta as the company desired - as a shallow and superficial means and reason to hold back my dues.
Had he paid me the salary - would he have been in a position to hold back anything??
So I think, this was a conscious and contemplated move!!
Any suggestions please. Will appreciate if I can reach across personally too.
I reside in Powai - Mumbai.
Thank you all for this long read.
Much appreciated
Cyalexko
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Dear Cyalexko,
It appears that you are all at sea. You have written your long post. The second paragraph is longest one with 872 words. While reading it the reader loses the track and it becomes difficult to concentrate.
You were reporting to whom? Was it MD? You have given reference of that person as "he". You have used personal pronoun without giving reference of noun in the preceding sentences.
Anyway, the issue is not about length of your post or it being structureless as such. Your designation was Head - International Business. Therefore, how many persons reported to you? If you had subordinates, then you will not be called as workman and consequently, provisions of Industrial Disputes Act, 1947 do not apply to you. In view of this, the only legal remedy left is to file a civil suit. Therefore, you may approach a lawyer who handles these cases and discuss with him whether it is advisable to take a route of litigation.
In case, if nobody reported to you and you were working all alone, then provisions of Industrial Dispute Act, 1947 could apply to you. Confirm your reply and then we will tell you what to do further.
Now, some feedback to you about your being communicative. How can a person of the stature of Head - International Business inform to his superior about his exit on WhatsApp? Did you leave from Indonesia without information to the superior authority? If reply to both the questions is yes, then gentleman, it can be said that you are yet to develop communicative attitude. While you could be good in verbal communication, but that is not sufficient.
Lastly, your post merits feedback to you. I can understand that you had been working without salary for several months and later your exit was also unceremonious. This has made you befuddled. Nevertheless, while writing a post, you could have picked up your nerve and written it in sequence without digressing or being verbose. This kind of post hardly behoves well for a person of the stature of Head - International Business.
Thanks,
Dinesh Divekar
Hello Dinesh,
I was reporting to the owner himself.
No one reported to me. I was handling the business development part myself.
Since I was reporting to the owner himself, all of our communication was through whatsapp for reasons of convenience and immediate reverts.
My trip to Indonesia was planned for 3 weeks and my tickets were confirmed and the agenda and time confirmed with him as is the case with every trip. "No" - I did not leave from Indonesia without informing the owner. He knew that I was to return to India on the 10th of Feb and I had communicated to him while in Indonesia itself that I would be doing so.
My initial intimation of resignation was through whatsapp - as that was the medium we had been using to communicate with each other and subsequently after a couple of days met him and offered my resignation personally.
Regards
Dear Cyalexko,
Your employer wanted to deduct your salary for the three months. He says that this deduction is owing to the non-completion of the notice period. In that case, please check your appointment letter and find out what was the notice period that you were required to serve. If it is three months, then deduction of the salary for three months is justified. However, one of the weakest point of your employer was non-payment of wages from Nov 2017. Employer should have paid your salary in time.
In your first post, you have not written what was your last working day.
Since you did not have any subordinates, you can be considered as "workman" under the provisions of the Industrial Dispute Act, 1947. Under the provisions of this act, you may file complaint to the Labour Officer (LO) of your area. In Mumbai, there are two labour offices, one in Bandra and another in Thane. Please find out under whose jurisdiction your company came into.
Please note that LO is different from labour lawyer. Former is appointed by the government whereas latter is professional who works in individual capacity and that too with fee. When you approach the office of LO, carry with you your appointment letter, payslip and identity card. When you approach LO office, please be formal. I say so because few companies ingrain informal culture into the blood of the employees. However, government offices have nothing to do with the informal culture that is followed in the corporate set up.
LO's are busy most of the time, therefore, please talk to the point without rambling. Tell him that you have approached for non-payment of wages, non-payment of allowances for which you were eligible and above all the service-cum-employment certificate. Talk in local language. In case if you do not know the local language, then take someone with you who can talk in local language on your behalf.
Thanks,
Dinesh Divekar
Hello Dinesh,
My employer is in no way justified in holding back 3 months pay??
My contract clearly states 3 months notice period. I informed him of my wish to resign via whats app on 13th Feb and in my resignation letter which I submitted to him personally a couple of days later (which he did not accept saying he would meet me next week to discuss the transition process) I had clearly indicated to the owner to consider this as my notice period. Hence I submitted the same formal resignation letter through email. I had all along been very willing to serve my notice period.
He just did not want to pay me further since I had resigned and is using the claim that I was unable to stay back in Indonesia until March end as the company desired - to deduct 3 months advance notice period!! So he considers my last working day as 13th Feb.
This has been the issue and something I disagree with totally.
Thank you.
Cyrus
Dear Cyrus,
I have told you how to redress your grievance through a medium that government has devised. Therefore, make a formal complaint there. On receipt of the complaint, the LO will treat it as industrial dispute. He will fix date to hear from both the parties . Later he will give his opinion. Please note that LO does not have judicial powers, therefore, it cannot be called as verdict. Nevertheless, generally employers do no go against the ruling of the LO. They abide with it.
Your employer should have ordered domestic enquiry, should have allowed you to put forth your defence and then should have taken disciplinary action. Since the due process of law or principles of natural justice were not followed, his position is weak.
As far as members of this forum are concerned, we can only suggest, nevertheless, we have not listened to other other party. Therefore, we cannot comment on who is justified in doing what.
Thanks,
Dinesh Divekar
Hello Dinesh,
However it may be, the fact that the owner has not paid salary since Nov 17 and now claiming deduction of 3 month's, just because he can hold it, is in itself an indication of his maliciious intent. Add to this his arrogance and do what you want to do attitude and I find it very disturbing. He has also blocked me on WhatsApp, now that handover is over and done with and does not respond to my emails. Many around me are suggesting that I serve a legal notice to him and then take up the matter accordingly. Want to check with you what would be the probability of having my dues settled going down the legal route and also what is the legal stand on employers not paying salaries.
Regards
Cyalexko
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