PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Industrial Relations And Labour Laws
Ceo-usd Hr Solutions
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Madhu.T.KWhatever be the stand of the employer, the consultant who is issued a payslip with total number of days 'worked' loss of pay etc is an employee only. If the contract says about adherence to the company policies with regard to timing, reporting, etc, the contract is a contract of employment and the amount of remuneration is salary only. When you leave after 5 years, obviously, you should be paid gratuity also. Please go through a case which is attached for your reference. This case is about a few consultant doctors whose remuneration were booked as Professional charges and the IT department demanded that the remuneration should be treated at par with salary since they are employees only.
From India, Kannur
monkey-singhThank you so much Madhu sir. But if I take a copy of this judgement to HR, the company is all the more likely to fight tooth and nail because acknowledging me as an employee will amount to paying up significant amounts of retrospective taxes to the government under section 192. Or I am not sure if that even applies because very few of the employees marked as "independent contractors" are even drawing much in comparison to Wockhardt.
Madhu.T.KIf the the Company HR is driving to a wrong direction, somebody should alert him that he is going in a wrong direction, right? Either the passengers in the bus should alert him or you should inform somebody outside who can stop the bus and ask the driver why are you driving to wrong direction! That means you can alert the labour department who will interfere with the management's wrong steps. If you feel that you will be booked by the management, you can use the official web portals of EPFO and labour departments.
From India, Kannur
KK!HRFrom what you have narrated, it is evident that the organisation has resorted to some paper arrangement to cover up the actual reality. This will stand the test of judicial scrutiny, once the 'veil is lifted' and the stark reality will appear clear and vivid. There appears to be no escape from this, the only question is when this happen and who is going to bell the cat.
As regards your queries, this is to clarify that:
1. Even if there is a tacit contract between the company and its so-called contractors, it is illegal and no contract can be valid if it is violative of law.
2. As regards the competence of Labour Commissioners (generally a senior IAS Officer) to decide on the questions of law, normally these matters are dealt by the Assistant or Deputy Labour Commissioner who is an experienced person from the Labour Department and so there is nothing to worry about their knowledge. Even in the worst case if the Labour Commissioner takes it upon him to deal with this, normally a qualified subordinate official will be helping and assisting him/her. The question of being an 'employee ' or not is a complicated question of law and facts so it will not be dealt in a casual manner.
From India, Mumbai
monkey-singh@Madhu sir, yes the company has a history of taking unfair action on employees over petty personal grudges. They will pick up some trivial human error which is very commonly done by just about anyone and blow it out of proportion to fire the employee and make them immediately leave the premises and disable their email account so that they can't gather evidence that there have been thousands of occasions in the past when such errors were just brushed away as part of work. Given that I am on notice right now, they are highly likely to just pick some random nonsense to terminate me and then claim that I am not eligible for gratuity because I was fired on disciplinary grounds. Yes, they can go that far.
@KK!HR, much appreciated. The second question was of priority because I really needed to know if there was a possibility of the company pulling some strings to get the labour office go in their favour. As stated before, the company has influence at top levels.
Madhu.T.KSoon after your relieving you should send notice to the company demanding your gratuity. If not paid, you can approach the Labour Office. Once it is materialised, the others can also demand it and obviously, the company will be forced to change the status of the employees.
From India, Kannur
nanu1953What Madhu T K has been mentioned in his last post is absolutely right. Collect and keep all necessary documents in your custody and first approach for Gratuity Payment after leaving the organization. Once it is settled, move for the other issues. Do not show any court case reference at this moment to your employer.
S K Bandyopadhyay ( WB, Howrah)
CEO-USD HR Solutions
+91 98310 81531
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From India, New Delhi