Was It Fair to Let Her Go Due to Headcount Issues? Seeking Your Thoughts on This Dilemma

Dear Peers,

I have a question. Please reply.

One of my colleagues was asked to leave the organization just because additional headcount was not approved for the department. She served the company for two years. New employees were brought into the same department, and this employee had to sacrifice her job. There was no issue with her performance.

Was this the right decision the management has taken regarding her termination? What can you suggest for the employee who is asked to leave?

Please evaluate and respond.

The first question is whether this is a case of termination or retrenchment. If the organization had asked her to leave and accordingly she had left, then it is the acceptance of the service conditions framed by the organization. However, if the organization terminated her without assigning any reasons or offering any disciplinary action for any kind of misconduct, then it is a legal default on the part of the organization.

Please check under which service conditions she had worked for two years. Whether she has been treated as a Confirmed Employee and informed in writing or not. It is also important to know whether she has received any notice before her expected leave. It is not clearly mentioned. Please clarify.

Regards,
Atul

Hi Atul,

Thanks for replying to my query.

The employee who is asked to leave is a confirmed employee, and no notice in writing has been given to her. However, her boss says that she should resign on her own and is insisting that she put in her papers.

The boss she reports to is a new person in the organization. He has formed his own team and has now asked this employee to leave so that her headcount can be utilized for the new entrant.

When the employee asked her boss why she is being asked to leave, he mentioned that it is not due to her performance as she is doing a very good job. Instead, it is because no headcount has been approved, and they need to bring in professional skills. Therefore, he suggested that she leave the company on a peaceful note.

He also emphasized that this message should not be communicated to other employees in the organization.

Essentially, he is pressuring the employee to resign, stating that if she does not, it will result in termination.

Is it fair to ask an employee to leave under these circumstances?

The employee is devastated and unsure of what to do in this situation but feels compelled to resign.

What is your opinion, and what course of action would you recommend?

Please advise.

Regards,

Delcy

Hi there!

It seems to be a case of forceful resignation.

In such a case, the employee who is asked to submit his resignation by any means, insist, threat, or force without assigning any reasons, charges, or without any strong reason of misconduct or misbehavior, he or she can make an appeal to the labor office under section 2(a) of the Industrial Dispute Act for conciliation purposes. In such a matter, a labor officer/inspector may call both parties, and after understanding the views of both, can try for an amicable solution acceptable to both parties. If, despite this conciliation, both parties are not ready to negotiate or revert the decision, then such a matter can be referred to the labor court under unfair labor practice, and further proceedings may occur to resolve the matter.

As far as this case concerns, you may ask her to meet the labor officer in her specified area, with the application stating the facts. She can also make the application in consultation with any advocate. If she has received the full and final amount, ask her not to make it in cash or do not deposit until the matter is resolved. She should also make available other evidence, proof to strengthen her case.

After making the application, the labor officer will call the concerned person, and conciliation can be processed.

I suggest that if it is difficult to manage all the things, it will be better to meet any advocate and seek his advice.

But there is definitely hope for the best justice.

I wish you can help her to get back on track.

Regards,

Atul Malve

Doesn't your friend have anybody else who is senior to this person, like the MD/Chairman? She should try speaking to them and explain the situation before escalating it outside the office.

Delcy,

One more thing I would like to update you on is that with the latest amendment in the Industrial Dispute Act, Section 2 (a), the concerned employee can now file their application directly to the Labour court instead of the Labour office.

For more details, please obtain a copy of the latest amendment from the internet. Your friend, who is also covered under this amendment (being in a clerical category), has brighter hopes for justice.

All the best.

Regards,
Atul Malve

Mr. Atul is right, but as per the appointment letter, there is a clear mention that they can terminate your services by giving you one month's notice or salary in lieu. What about this fact? Can you explain, Mr. Atul?

Thanks,
Ajay

I still maintain that your friend should first try to sort out the differences within the organization by approaching some senior person. There are chances that the issue will be resolved. The more peacefully you try to find a solution, the better it is for the employee and management.

Hi Mr. Ajay,

You are correct. But in such a case, the court may consider all the facts and findings related to the case if it is to be referred for order. If the employer has the available employment for such a post and if intentionally or unintentionally the confirmed employee loses his employment without any strong reason or disciplinary procedural aspects, such a case may definitely come under unfair labor practices. Even though, in some cases of confirmed employees, such as one-month notice to terminate his/her services may also be called for an unfair practice, and the employee can challenge in such cases. The court will always consider the valid reasons, sufficient grounds for the decision, the past history of the employee, humanity, and natural justice. I think, in this case, no one has given her any notice for her termination and suddenly taken this hard decision to end her employment. So, she should ask for justice. I hope for her best.

Regards,
Atul Malve

Hi Nikhil,

Yes, as per the latest amendment in the wage ceiling under The ID Act, the wage ceiling is being revised from Rs. 1600/- per month to Rs. 10,000/- per month. Accordingly, a person working in any industry, whether engaged in manual, unskilled, skilled, technical, operational, clerical, or supervisory roles and drawing wages up to Rs. 10,000/- will be considered a 'workman'. Previously, due to lower wages, employees might not have been covered under the Act. However, with the increase in the wage ceiling, most employees whose basic salary/wages are up to Rs. 10,000 per month would be covered under the Act. Delcy can review these conditions and take necessary action.

Regards,
Atul

Hello Dears,

I have carefully read all the information provided above, but in reality, it is very challenging to continue a job after a legal battle, especially for a skilled person. The mental pressure can be overwhelming. In my opinion, before initiating a legal battle, all aspects should be discussed with senior management. If a direct discussion is not possible, it should be done through email. It is crucial that all senior management personnel are aware of who is at fault before proceeding with legal action.

Thank you,

Vichitra Kumar

Dear Delcy,

We observe that in recent times, even senior employees are engaging in job hopping from one organization to another. These employees do not move individually but take employees in a flock to subsequent employments. They not only subvert the recruitment process but also foster nepotism within the organization. They form strong tribes within the organization, giving rise to hatred and enmity amongst departments.

The HR department must play an active role in addressing this issue. Please ask your colleague to speak with someone senior in the HR department and explain the situation. If your colleague has achieved outstanding results during her tenure, it would be beneficial to highlight these achievements during the discussions. Additionally, presenting information about new entrants referred by her boss from his previous employments can help substantiate the facts.

Insist that she needs to receive the reason for seeking resignation in writing from her boss. Advise her not to accept any termination letters without a proper explanation. Politely convey during the discussions that this practice is unfair and may have legal implications.

Some employees behave in this manner because they assume that juniors will not escalate the issue to higher-ups due to fear and will instead resign upon being terminated. On the other hand, advise your colleague to search for alternative employment as she may not find peace after fighting this battle. Gracefully exit, ensuring to record the reasons for her departure during the exit interview process. If such a procedure does not exist, she can write to top management after her dues are settled.

Ask your colleague to bring this matter to the attention of top management as it will deter her boss from continuing this behavior. He needs to be held accountable.

M.V. Kannan