Dinesh Divekar
Business Mentor, Consultant And Trainer
Nelsonthomas9102
Hr Executive
+1 Other

Hi, I am a Senior executive in an Indian entity of a European company, headquartered in France. My employment location is Bangalore. I was rated '4 - Needs Significant Improvements' last year and consequently advised to go on Garden leave this year. I have to provide notice of 3 months, per my employment offer. Given below are the chronology of facts:

1. My senior colleague in America called me in the first week of Jan to disclose my rating and the broad feedback. It is pertinent to note that I don't report to her and she has functionally no clue of what I do. She is at a higher grade and more tenured in the team, but our roles are similar. I used to lead the APAC team until July last year and she is leading Americas. I guess she is not part of the same forced ranking curve as me globally. Our organization requires that the confidentiality of employees' ratings and appraisal is maintained between Supervisor, HR and the employee only.

2. She had no details to support the rating or feedback. I therefore, scheduled a meeting with my direct supervisor (he took over from my earlier supervisor in the middle of last year), but he too did not have any details like who provided a negative feedback on me to him, when, on which instance, what did I do or not do etc.

3. He mentioned a couple of examples which were from April last year (we follow a Jan - Dec appraisal cycle), effectively meaning that my performance after that did not matter.

4. When I asked why he did not share the feedback during our weekly meetings last year, his only excuse was that he wanted to observe my performance for the rest of the year. In short, he denied me the opportunity to be aware of the feedback and take corrective action, if necessary.

5. He stated that mostly he has heard feedback like "you are difficult to work with" and "you lack the ability to sell", but could not substantiate where these perceptions were coming from or if any loss of deals were specifically attributable to my failure. Our organization requires supervisors to rate employees' performance and behavior and not their personality.

6. It must be noted that until Oct last year, he also persisted with allocating sales pursuits and responsibility of hosting client workshops to me. If he indeed received the above feedback, he made no effort to upskill me or nominate me for training.

7. When my earlier supervisor quit in July last year, I was stripped of my responsibility to lead the APAC team. This, in spite of the fact that I was the top performer among my peers last year, in terms of handling a portfolio of projects and sales pursuits consistently. There were no documented complaints or escalations against me and my utilization was among the topmost globally, in spite of 50% attrition in my team in 2018 which I managed to plug by mid 2019.

8. Up until that point of time, I was performing step-up roles for 30 months (hired as a Director and then bumped upto Senior Director due to entity integrations with no change in pay and then taking up the additional role of APAC lead in 2018) but none of these were considered in my appraisal.

9. Requisition for my back-up was raised in Oct last year and she was onboarded in Dec last year. It is pertinent to note that calibration discussions in my organization happen towards end of Oct or by mid Nov for senior levels. So, the decision on my rating, severance and hiring my back-up was taken well before the global calibration of appraisals for my grade.

10. My supervisor stopped allocating any work to me from Nov last year till now, in spite of my requests to utilize my free bandwidth.

11. I met my HR by end of Jan this year to appeal against my biased appraisal, breach of my confidentiality in sharing my appraisal with my peer and conflict of interest (my current supervisor is distantly related to me, which I realized in Feb last year, but I was not reporting to him until July last year). I gave them all the evidences I had for all of the above and did not accept my appraisal still (deadline is already past).

12. My HR promised to constitute a neutral panel for hearing my appeal and the panel is currently reviewing it. It is pertinent to note that the panel members are from another entity but lower in grade than my supervisor. I expect their decision within a week of two.

13. In the meantime, my HR proposed a settlement package of 3 months' gross pay in lieu of notice + 3 months' gross pay for severance, in case I am not able to find a role internally within the organization (out of my current team) and either find a job outside the organization or remain jobless at the end of Apr 2020. They said they will pay me the settlement irrespective of whether I get a job outside or not within Apr 2020. Obviously, if I get a role within the group, then there is no question of an exit settlement. This is documented on email.

14. I have not yet got any role internally, since nobody wants to consider a '4' rater and my HR is aware of it. I had a discussion with them to relieve me once the outcome of my appeal is known. I stand to lose the variable bonus for last year as well as the proportionate amount for 6 months of my settlement package, if my appeal is rejected and the rating is retained at 4.

15. Surprisingly, my HR now contends that I have been on notice since Feb (after our discussion) and they are bound to pay only the 3 months' severance pay at the end of April, as agreed. I pointed out to them, that I have not yet resigned and therefore my notice period cannot start until I resign.

16. They insist that I have been drawing salary without performing any work for 3 months and therefore, they consider me to be on notice already.

I am still engaging my HR on the appeal process and discussion regarding my exit / settlement package. I did check with a couple of lawyers in parallel and they opine that my HR is wrong in considering me to be on notice when I have not yet resigned. They have also advised that I need not resign unless the appeal panel upholds the rating and my deficiency in performance is proved with evidence. In case, I chose to resign, they have stated that I can enforce the agreed settlement package in a civil suit since it is documented on email with my HR.

I have got another job outside and I am not inclined to stay. I am also not inclined to take the legal route, in spite of suggestions due to protracted timelines and cost. I would like to amicably settle with my organization and escalate up to the CHRO, if necessary. Please advise your opinion on the following questions from a HR perspective (only senior HR execs in their current org may respond please):

1. I believe that the starting point of my appeal is my last appraisal and if my supervisor cannot substantiate the perceptions thrown at me with appropriate evidence (not mere statements collated from others), then the appeal panel will have to reverse the poor rating, isn't it? If they do, who determines the appropriate new rating - my supervisor, HR or the panel?

2. Am I right in claiming violation of my data privacy since my rating and feedback were shared by my supervisor with my team mate in Americas (please refer point 1 above)?

3. If you refer to the chronology above, can you spot an element of bias in the process followed for my appraisal and exit (refer points 9 and 10 above)?

4. Is my HR correct in claiming that I am currently on notice since they asked me to look for roles internally and externally? I thought I can at best be described as being on Bench, since I have not yet resigned. I have a 3 month notice period per my offer letter, which both employer and employee have to adhere to.

5. Did my HR not undermine the appeal process for my appraisal, by contending that I have been put on notice even when the appeal is in progress?

6. Isn't my organization bound to release the gratuity that is part of my annual CTC (retirals) and accumulated till now, since I have not resigned voluntarily and they are asking me to quit?

Please do respond to all the questions above.

Thanks

From India, Bengaluru
Dear Indinextdoor,
Your long post is nothing but a case study for the HR professionals on various topics like Performance Appraisal, Organisational Communication, Organisational Culture, Flaws in the HR processes and so on.
Apart from the additional text, you have given 15 points to explain the chronological events. Later you have asked six questions to us.
What has happened to you is unfortunate. It appears that the systems and processes are yet to be stabilised in your company. You are a victim of the incomplete HR processes. Nevertheless, you say that you have acquired another job. Therefore, keep aside whether your current company was fair with you or not. Just take the remuneration and move on. However, before moving on, obtain at least a verbal agreement from HR that they will not create any problem in the Background Verification (BGV).
You can sue your company for the unfair treatment and not following the principles of natural justice while terminating an employee. However, you will be dead tired by the time the court gives its verdict. Above all, the outcome of the court verdict depends on the forcefulness with which your lawyer argues the case in the court.
Your major concern is getting an unblemished service-cum-employment certificate. Your other concern is maintaining the movement of the wheels of your career. Let there be no interruption. Else this interruption may prove costlier.
"Injustice never rules forever." goes the quote of Seneca The Younger, a Roman philosopher. Who knows but in your new company, you could be given a far better treatment. However, make sure that you have better terms with your Manager. Your problem appears to have arisen out of disconnection between you and your manager.
Lessons for the HR Professionals: - That this problem happens in "French MNC" speaks volumes. The post shows HR's job is not just to make the policies but identify the flaws in them and foreclose any chance of the bad repute to the company. That the performance appraisal should be based on the material evidence of the performance and to avoid the disputes, the evidence must be shared with the subordinate, this simple fact was ignored by the French MNC. The post also shows that the HR's working in MNCs are also ordinary mortals and the less they brag about being in MNC, the better!
Thanks,
Dinesh Divekar

From India, Bangalore
Thank you Dinesh ji. That this can happen to a Senior Executive in the organization indicates the scant impunity with which established processes are flouted in Indian arm of MNCs. I have seen this with other organizations as well.
In my case, I had realized earlier that a Contrarian view and sincerity is seldom appreciated in an Indian context. After all, there is an old saying 'Yatharthawaadhi Bahujana Virodhi'. One who speaks common sense becomes an enemy of the state! I need to temper my views with this realization now.
I am only pained at the lack of understanding on basic concepts within the HR function of such a huge organization.

From India, Bengaluru
Hi Partner,

The first question that needs to be answered here is whether you would like to stay back at the company and fight your case to change the performance rating or on whether you would like to take up the job at the new company and move on.

If you prefer to move on, then you also need to ensure as explained by Dinesh that in future, your performance is not reported as poor during the BGV conducted by prospective employers.

So, if you would like to move on, it's better to talk with your lawyer and then inform the HR that during an appeal process if they consider you to be on notice period, without any expilcit act of resignation from your end, then this would be illegal and can be raised as a concern in the labour court. This way a clean relieving letter confirming your performance as satisfactory can be attained.

From India, Bengaluru
Dear all, thank you for your kind inputs. As an update, my appeal has been rejected by an internal panel.
I have requested for copies of the evidence reviewed by the panel, but that request has also been denied.
I will try raising my concern with the Group CHRO and hope the European office follows a better rigor and courtesy.
I am also running out of time, since I want to take up the new job on 27th April. Am too pained with the process now. It's not the feedback that hurts but the gross disrespect. I am inclined to take whatever severance is provided and continue my interactions with the CHRO's office from outside the organization, in good faith. I am not inclined to pursue a legal process, for obvious reasons. I believe in God. Karma will catch up with us all one day.

From India, Bengaluru
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