#Anonymous

Dear Team,
Please help me to solve below case study:
A security guard who is on the payroll of contractor was terminated by company as he was drunk while on duty. He was found doing so 2-3 times and warned previously but as no improvement found, the concerned contractor terminated him. After few days he met HR person of concerned company and took experience letter from HR saying he is in bad financial condition so need experience letter to find another job. HR issued experience letter and mentioned that the security guard was working with us under the contractor. Now concerned security guard is misusing that letter and filed a case in labor court saying that he was on company roll and company issued him experience letter of a contract roll. And asking to rejoin on company roll. Company has already replied to his letters explaining all facts but after every 15 days he sends letter to company through labor office. Please help on how to close this matter. Also give which laws to refer.
Thanks,
Smita.
21st December 2018 From India, Pune
how can a company HR issue an experience letter to contractor worker? this is the sole part of contractor , not of the principal
21st December 2018
Dear Smita,
There is little contradiction in your post. At one place you write that you have received notice from Labour Court. At another you write that you have been receiving notice from Labour Office. Therefore, clarify on this count.
Anyway, whether you have received notice from Labour Office or Labour Court, your company needs to send their representative and prove that the security guard was a contract employee.
Now about termination of his services. What procedure did you follow before termination of his services? Yes, consumption of alcohol while on duty is misconduct but then what proof do you have? If you have incontrovertible proof then did you conduct the domestic enquiry before termination? Though your case is not weak as such but not conducting the enquiry could increase your headache in this matter.
Thanks,
Dinesh Divekar
22nd December 2018 From India, Bangalore
You write that company terminated him.later said contractor terminated.Company principal employer should not terminate contract employee.
You issued experience certificate.That is also wrong.Any way fight the case in LC.
Varghese Mathew
Tvpm Ph 9961266966
23rd December 2018 From India, Thiruvananthapuram
Dear Smita,
Don't get panic and do not reply anything in writing to the person.
You can prove to the Authorities ( Labour office or Labour Court) that he was contract worker deployed to work in your premises by his immediate Employer on the basis of his appointment letter , wage register, ID card attendance register etc and such other records which the Contractor would have maintained.
Certainly, it was mistake if the HR of the principal employer has issued Service certificate on the Company's letterhead.
But depending on the contents of the letter, you can twist it in your favour.
It looks like the person may drag you to the Labour Court.
He can either invoke provisions under Industrial Disputes Act or MRTU &PULP Act. Under ID Act he has to go through Conciliation process first then Adjudication. But under MRTU& PULP Act, he can directly approach Labour Court.
Any way, you need to engage good labour lawyer if and when matter goes to the legal authorities.
But now take every step only after consulting your lawyer.
Regards,
Vinayak Nagarkar
HR- Consultant
24th December 2018 From India, Mumbai
Under Industrial Disputes Act also he can go to Labour court without reference by appropriate Government.
Varghese Mathew
24th December 2018 From India, Thiruvananthapuram
Dear Mr Verghese,
Yes, thanks for pointing out. I missed out this.
Regards,
Vinayak Nagarkar
HR- Consultant
24th December 2018 From India, Mumbai
If he is a Contract Employee ask the Security Company to write to the Labour Office saying that he is their terminated worker and not an employee of the PE.
V.Sounder Rajan
HR & Employment Law Attorney
Specializing for Recruiting and Contract Staffing Industry
M: 98401-42164
24th December 2018
Dear Smita,
Your HR has done blunder by issuing experience certificate to contractor workmen.
Further, it is not understood how you could terminate the workmen of contractor as you are not the pay master. Not much can be contributed to help you for a sollution as you have already made communication to the labour authority.
Only thing I can say to console you, that there is nothing to worry in least if your said contractor has obtained the licence from the Labour office.
You ask the workman to produce the appointment letter that he was appointed by you as Guard. Before that pl send the copy of experience letter issued by you in my whatsapp no8093097934 to suggest something best.A similiar case had handled by self and earned result from High Court in our favour.
Regards
28th December 2018 From India, Mumbai
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