Madhu.T.K
Industrial Relations And Labour Laws
Nagarkar Vinayak L
Hr And Employee Relations Consultant
Rkn61
Hr Manager
Nagesh.Koppula
Dy. Manager Hr
Mahajansahab
Director

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Dear All,
I would like some advice on how to handle a case related to our company employee who was terminated without notice because of poor performance.
1. His service was terminated abruptly citing his casual & non-serious attitude towards work.
2. Joining Date: 19-4-19 , Relieving Date: 11-11-19. He worked for total 157 days
3. His dues upto the relieving date waere paid via NEFT to his bank account
4. He was a technician so he was not issued a joining letter upon joining and he did not come to office after his dues were cleared to sign no dues certificate.
5. He was not enrolled into PF & ESI because he requested us while joining that its of no use to him & signed Form 11. His salary actually was 18000 but we showed 21500. Plus he was given conveyance as per actual which was about 2000-3500 based on km run.
6. Office location: Delhi
Now the employee has sued us in labour court & is demanding 2 month compensation + PF due which in totality amounts to 1 Lakh rupees.
I understand that there are lags at our end but we cleared all the dues of that employee in good faith.
Requesting the honorable members of the forum to please help me out in this case as to what can be done. If possible please share your contact number so that I can consult.
Regards & Thanks in Advance.

From India, New%20Delhi
My experience says that even after you pay him the amount which he or she is asking, he will challenge his termination before Conciliation Officer and the matter may be referred to Labour Court for adjudication as to whether termination of his services w.e.f. 11/11/2019 is legal and justified.
If you go for settlement, please obtain his hand-written resignation dated 11/11/2019, accept it with immediate effect and obtain his signature for communication of acceptance. Otherwise you may face litigation.
For any query concerning Labour and Industrial Laws you may contact me :-
- Shobhit Kumar Mittal
Labour Law Advisor
8077779793, 9319956443

From India, Faridabad
You should appear for the hearing and say that he was hired as a probationer and when we found his work to be unsatisfactory, we asked him to go after paying him the dues. It is true that you did not issue any appointment order with a clause of probation in it. You can say that the company do not issue appointment orders to technicians. but you have to prove that the technicians require at least one year training and the practice being followed is like this. In order to establish this, you have to make records of his daily/ weekly performance, his late coming records, etc. Since you get enough time to appear with lots of postponement of hearings, you can also make similar records of other technicians. This will be useful as evidences. You should put remarks in the performance record,like,'talked to him,warned verbally, ' etc on different dates.
Since his salary was above Rs 15000,PF was not applicable to him and that was why he was not covered by PF. Therefore his claim for PF is also not maintainable.
Since the employee had not worked for 240 days, no compensation could be paid to him legally.
It will take at least two years to complete the process.
Now my advise to the management: Never employ an employee, whether unskilled or managerial, without giving an appointment order. An appointment order is always a document which defines the employee and employer relationship. In this document, the service conditions, his probation, how the relationship could be terminated, notice period from either side etc will be clearly mentioned.
Secondly, in order to avoid ESi or PF, never show a wrong entry in the books as salary paid. In your case, you have shown Rs 21500 as salary, just to avoid ESI. By avoiding ESI, what you gain? Do you know that the compensation that you have to pay in case of any accident resulting in death or disablement of a worker not covered by ESI is much higher than the contribution payable to ESI in respect of him?
Thirdly, how much time it would take for you to issue a memo for bad performance? Do you know, you are not expected to terminate even a probationer for non performance without giving him an opportunity of being heard. In the case of bad performance, you should give two or three chances so that he could improve. termination after that only can be justified.

From India, Kannur
Dear Colleague,
You have made serious blunder in:
1 Not following due process of law before terminating an employee .
2. Engaging employee without proper appointment letter.
3. Hastily making F&F through Neft.
You are now facing a court case.You have two options -either fight it out or to settle it amicably.
In the given circumstances I would advise you to go for negotiated settlement route wherein you pay him agreed amount only upon his agreeing to withdraw his court case as a part of the written agreement.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
Dear Friend,
I would like to say the termination of the employee is illegal. There is nothing as ‘poor performance’.
Did you issue any termination letter?
You need to post the letter issued to you from labour courts with averments made by the employee, to suggest something viable for the case.
You can contact me in 8093097934 & 8917374323 8.30PM-9.00Pm

From India, Mumbai
This is completely violation of statutory compliance.
First not issuing appoint letter. Second no ESI and PF contribution.
The only way to save yourself is settlement between 2 parties. Otherwise you will be penalized for ESIC violation and for Unethical Labour Practices.
Before terminating any employee you should always remember "Principle of Natural Justice". For workmen, laws are very stringent you should always conduct Domestic Enquiry for any misconduct or non performance.
My suggestion is to go for amicable settlement and before this review your all statutory compliance.
Regards,
Nagesh

From India, Hyderabad
Dear Mr.Mahajan,
After reading your posting, it is felt that there is lack of professionalism in the matter of appointment as well as termination. Kindly note that "job performance being poor" is not
a misconduct or indiscipline, which can tantamount to strict disciplinary action. You employ personnel after going through the recruitment process; for a technical personnel, the servies of a technical expert are also utilised.
In modern era, there are ways and means which can be adopted by the management to improve performance of a person. You can give warnings, both oral and written. You can extend his probation period to another 3-6 months, you can stop his increment etc. Please do not jump into the highest punitive action.
Since action is already taken, now there is no use to discuss it. PF, as claimed by him is not applicable as he was drawing salary which is above PF salary ceiling.
Regarding his compensation, it is suggested to utilise the services of an advocate, well versed with labour laws and contradict the matter.

From India, Aizawl
Dear Mahajan,
First place we have to ensure that the IR part is handled well. That means the employees who are not permanent and who has not been issued appointment orders, their documentation part is taken are well,including administrative actions. In future 1st time inform them officially. 2nd time with production OR department head. 3rd time with official letter of termination. But all to be documented in future.
1. Please face the labour inspector with documentary evidence. Do not panic. Speak to them in politely but strongly.
2. PF demand is fake in his case, because he has given declaration initially itself.
3. If the money (F&F) is transferred in his account Or taken by cash as settlement take the details with you.
4. For future ensure that the ESI OR workmen insurance is taken for all such workers.
5. He has worked for 157 days only.
Last but not the least, poor performers to be intimated upfront without any hesitation as a HR person. Labour is very important item point in 4M pillar (Man, Material, Method and Machine).
As a HR person you have to get ready with documentation, which is a must.
All the best....Subramanyan PP

From India, Delhi
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