Dear Team,
Please help me to solve the below case study:
A security guard who is on the payroll of a contractor was terminated by the company as he was drunk while on duty. He was found doing so 2-3 times and warned previously, but as no improvement was found, the concerned contractor terminated him. After a few days, he met with the HR person of the concerned company and took an experience letter from HR, stating he is in bad financial condition and needs the experience letter to find another job. HR issued the experience letter and mentioned that the security guard was working with us under the contractor. Now, the concerned security guard is misusing that letter and filed a case in labor court, claiming he was on the company's payroll and the company issued him an experience letter for a contract role. He is asking to rejoin on the company's payroll. The company has already replied to his letters, explaining all the facts, but every 15 days, he sends a letter to the company through the labor office. Please help on how to close this matter and also provide which laws to refer to.
Thanks,
Smita.
From India, Pune
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Please help me to solve the below case study:
A security guard who is on the payroll of a contractor was terminated by the company as he was drunk while on duty. He was found doing so 2-3 times and warned previously, but as no improvement was found, the concerned contractor terminated him. After a few days, he met with the HR person of the concerned company and took an experience letter from HR, stating he is in bad financial condition and needs the experience letter to find another job. HR issued the experience letter and mentioned that the security guard was working with us under the contractor. Now, the concerned security guard is misusing that letter and filed a case in labor court, claiming he was on the company's payroll and the company issued him an experience letter for a contract role. He is asking to rejoin on the company's payroll. The company has already replied to his letters, explaining all the facts, but every 15 days, he sends a letter to the company through the labor office. Please help on how to close this matter and also provide which laws to refer to.
Thanks,
Smita.
From India, Pune
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how can a company HR issue an experience letter to contractor worker? this is the sole part of contractor , not of the principal
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Dear Smita,
There is a little contradiction in your post. At one place, you write that you have received notice from the Labour Court. At another, you write that you have been receiving notice from the Labour Office. Therefore, please clarify this discrepancy.
Regardless of whether you have received notice from the Labour Office or Labour Court, your company needs to send their representative and prove that the security guard was a contract employee.
Now, regarding the termination of his services, what procedure did you follow before terminating his services? While consumption of alcohol while on duty is misconduct, what proof do you have? If you have incontrovertible proof, did you conduct the domestic enquiry before termination? Your case is not weak per se, but not conducting the enquiry could complicate the matter further.
Thanks,
Dinesh Divekar
From India, Bangalore
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There is a little contradiction in your post. At one place, you write that you have received notice from the Labour Court. At another, you write that you have been receiving notice from the Labour Office. Therefore, please clarify this discrepancy.
Regardless of whether you have received notice from the Labour Office or Labour Court, your company needs to send their representative and prove that the security guard was a contract employee.
Now, regarding the termination of his services, what procedure did you follow before terminating his services? While consumption of alcohol while on duty is misconduct, what proof do you have? If you have incontrovertible proof, did you conduct the domestic enquiry before termination? Your case is not weak per se, but not conducting the enquiry could complicate the matter further.
Thanks,
Dinesh Divekar
From India, Bangalore
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You wrote that the company terminated him, later said the contractor terminated. The company's principal employer should not terminate a contract employee. You issued an experience certificate. That is also incorrect. Anyway, fight the case in LC.
Varghese Mathew
Tvpm Ph 9961266966
From India, Thiruvananthapuram
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Varghese Mathew
Tvpm Ph 9961266966
From India, Thiruvananthapuram
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Dear Smita,
Don't panic and do not reply in writing to the person. You can prove to the authorities (Labour office or Labour Court) that he was a contract worker deployed to work in your premises by his immediate employer based on his appointment letter, wage register, ID card, attendance register, etc., and other records that the contractor would have maintained. It was certainly a mistake if the HR of the principal employer issued a Service certificate on the company's letterhead. Depending on the contents of the letter, you can twist it in your favor. It seems like the person may take you to the Labour Court. He can invoke provisions under the Industrial Disputes Act or MRTU & PULP Act. Under the ID Act, he has to go through the Conciliation process first, then Adjudication. But under the MRTU & PULP Act, he can directly approach the Labour Court. In any case, you need to engage a good labor lawyer if the matter goes to the legal authorities. For now, take every step only after consulting your lawyer.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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Don't panic and do not reply in writing to the person. You can prove to the authorities (Labour office or Labour Court) that he was a contract worker deployed to work in your premises by his immediate employer based on his appointment letter, wage register, ID card, attendance register, etc., and other records that the contractor would have maintained. It was certainly a mistake if the HR of the principal employer issued a Service certificate on the company's letterhead. Depending on the contents of the letter, you can twist it in your favor. It seems like the person may take you to the Labour Court. He can invoke provisions under the Industrial Disputes Act or MRTU & PULP Act. Under the ID Act, he has to go through the Conciliation process first, then Adjudication. But under the MRTU & PULP Act, he can directly approach the Labour Court. In any case, you need to engage a good labor lawyer if the matter goes to the legal authorities. For now, take every step only after consulting your lawyer.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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Under Industrial Disputes Act also he can go to Labour court without reference by appropriate Government. Varghese Mathew
From India, Thiruvananthapuram
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From India, Thiruvananthapuram
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Dear Mr Verghese, Yes, thanks for pointing out. I missed out this. Regards, Vinayak Nagarkar HR- Consultant
From India, Mumbai
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From India, Mumbai
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If he is a contract employee, ask the security company to write to the Labour Office stating that he is their terminated worker and not an employee of the PE.
V. Sounder Rajan
HR & Employment Law Attorney
Specializing in Recruiting and Contract Staffing Industry
M: 98401-42164
From India, Chennai
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V. Sounder Rajan
HR & Employment Law Attorney
Specializing in Recruiting and Contract Staffing Industry
M: 98401-42164
From India, Chennai
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Dear Smita,
Your HR has made a blunder by issuing an experience certificate to contractor workmen. Further, it is not understood how you could terminate the workmen of the contractor as you are not the paymaster. Not much can be contributed to help you find a solution as you have already communicated with the labor authority. The only thing I can say to console you is that there is nothing to worry about if your said contractor has obtained the license from the Labor office.
You should ask the workman to produce the appointment letter showing that he was appointed by you as a guard. Before that, please send a copy of the experience letter issued by you to my WhatsApp number 8093097934 for me to suggest the best course of action. A similar case was handled by myself and resulted in a favorable outcome from the High Court.
Regards
From India, Mumbai
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Your HR has made a blunder by issuing an experience certificate to contractor workmen. Further, it is not understood how you could terminate the workmen of the contractor as you are not the paymaster. Not much can be contributed to help you find a solution as you have already communicated with the labor authority. The only thing I can say to console you is that there is nothing to worry about if your said contractor has obtained the license from the Labor office.
You should ask the workman to produce the appointment letter showing that he was appointed by you as a guard. Before that, please send a copy of the experience letter issued by you to my WhatsApp number 8093097934 for me to suggest the best course of action. A similar case was handled by myself and resulted in a favorable outcome from the High Court.
Regards
From India, Mumbai
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