Madhu.T.K
Industrial Relations And Labour Laws
Nathrao
Insolvency N Gst Professional
SandipShri
Private Job (consultant)

Dear Sir, Kindly advice on below, I work in an IT company:-

Case due to COVID 19:-

On 26 March 2020, the Manager called me and said you will be laid off.

On asking terms and conditions he said, there are two options.

1) Immediate termination of service on 31 March 2020 along with 3 months basic pay and leave salary.

2) Time off Service Scheme (TOSS) in this case 3 months of service on paper and NO SALARY only PF will be paid.

On completion of 3 months i.e on 30 June 2020 company can revoke TOSS or they may terminate the services.

I said, I am okay with the first option.

Later on, I got a letter from HR stating only the second option i.e TOSS.

I requested the management to pay as stated on call by the Manager/offer letter but in vain.

Then a legal notice is served to the company to pay for the separation process as mentioned in the offer letter.

Offer letter states as below:-

"Notwithstanding the clause on retirement from the company's service, your employment with the Company is subject to termination on 90 days prior notice by either side. The Company, however, reserves the right to, at its sole discretion, substitute the notice period by paying you basic salary in lieu of the notice period."

It's been one-month company has not responded to the legal notice even after giving reminder.

Three months period will end on 30th June 2020. The company is forcing to withdraw the legal notice to provide any further documentation related to employment.

What should I do now, there are some more employees in this scenario.

Kindly provide your valuable/experienced inputs to deal with this situation.

To employees who are not served with such notices, they are paying Salary with about 20 % deduction.

I have not received any salary since last two months nor got any job offer.

Awaiting for reply.

Thank you.

From India, Pune
Since you have already served a legal notice to the company we don't have anything to say. Moreover, you have not mentioned about length of your service with the company, your role (whether you were acting in managerial capacity or not) and present position of the company with respect to projects availability. Therefore, better proceed with the legal notice as advised b your lawyer.
From India, Kannur
Thank you for replying.

The company took over us from another company on 1 April 2019 so length of service is 1 year on 31 March 2020. I am working as software consultant.

Since the company has not responded to our legal notice lawyer suggest us to file a civil case.

Further lawyer is saying that since the insolvency limit is now 1 crore due to COVID 19 earlier it was 1 lakhs this may weaken the case.

I am not able to clearly understand this point. I am a salaried employee not a partner in the company.

Going to file a civil case will be time consuming and they will not provide me any document for new job opportunity till outcome of this case.

Company is not having projects since December 2019 and some under discussion project got delayed due to covid-19.

Likewise there are 30 employees only 4 came forward to serve legal notice. 4 times I have humbly requested them to settle account as per terms and condition of offer letter before serving legal notice.

What could be my action, kindly suggest.

From India, Pune
I could foresee this situation and that was why I said since you have already initiated case against the company you may go ahead with it. You should have used this orum before sending a notice. You are well aware of the situation of the company which has an empty order book. You have not even completed a year of service when you were asked to leave. 12 months of service with 240 days working naturally gives an employee a lien on employment but not for an employee hired as a consultant. That is why your advocate has suggested to file a civil suit. What happens? You will end up in paying fees, nothing else can happen.
In my opinion your company has been very fair when compared to other companies. At least they have given you 3 months' time. If you do not withdraw the case, you will not get a service certificate. Again, if you are given a service certificate, you cannot expect that the company will give a fair reference to your future employers. They can certainly put this in the background verification.
Therefore, my advice is to withdraw the notice (a notice once served is served and it cannot be withdrawn but you can give an undertaking to the company that case will not be initiated) and ask for a sttlement.

From India, Kannur
Thanking you for replying swiftly.
Kindly consider the fact that for remaining employees they have funds to pay with only 20% salary deduction. Why they are not paying my lay-off salary which is 40% of my gross salary. Which they have committed on call. (Their intention is to abandon an employee without paying any amount)
Since they have have acquired me from other company my total service is 2.5 yrs including both the company.
My total service uptill now is 18 years (in 7 Companies). I have enough appreciation email from this management for future employment.
Three months of time is on paper only without salary, considering my vast experience I do not need this.
It is not about only paying lawyer's fees somewhere fair play on part of company and Justice matters.
Also consider the fact that couple of months back I wanted to leave and asked them if notice period is negotiable they said it is 3 months non-negotiable.
Please elaborate on Insolvency also as lawyer has pointed out.
The concern is not about ending of regular employment / termination it is about compensation which an employee should get as per terms and conditions of employment or in present scenario a descent amount for Golden Handshake.
Request you to consider above facts and let me know your advice.

From India, Pune
IBC act 2016 is now not applicable in your case.Govt has suspended operation of IBC for the time being.A fair move by GOI in Covid times.
However you need to negotiate with the company and get the best deal possible.
Civil suit for recovery of unpaid dues is possible.
Cons are time and expense.
I agree with your injured feelings, but be practical,we are in an unequal world where justice is delayed to the extent it become injustice.
Day in and day out we see injustice and blindfolded justice.That is a undeniable fact.
Withdraw notice if company pays even part of your dues.
Get good references and move on.

From India, Pune
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