How Should We Handle a Legal Dispute Over Employee Termination and Compensation?

Greetings to all Seniors,

I am working with a well-known construction group as a Sr. Officer HR. I would like to seek your help in a court case we are dealing with regarding employee termination, having the following history.

Background of the Terminated Employee

The employee who has been terminated was working with us as a Sr. Manager Finance for our Pune region. He joined us in 2008, and we found him suitable, so his services were confirmed. During his tenure, we also observed some behavioral issues like being too rude with subordinates and juniors, and not following certain administrative rules. After a year, his behavior became a significant concern for the COO of the Pune office. The employee was advised to change his behavior. Despite warnings and counseling, some positive changes were noted, but they were short-lived. The same issues persisted. Our COO escalated the matter to the HR GM, who directed the employee to change his behavior or face termination. The employee refused to acknowledge the counseling letter and behaved rudely towards the COO.

Termination and Subsequent Legal Action

Following this incident, the case was brought to top management, and a decision was made to terminate the employee immediately. A termination letter citing misconduct and misbehavior was issued. However, the employee pleaded to not disclose the reasons for termination in the letter, citing concerns for his future job prospects. His request was considered on humanitarian grounds, and the termination letter was amended. The company also paid him one month's salary, along with other allowances like bonuses and leave payments.

A month later, the employee filed a case against the company, claiming wrongful termination without prior notice and demanding three months' notice pay.

Company's Stance and Legal Considerations

According to the employment contract outlined in the appointment letter given to all employees, termination without notice pay is permissible in cases of misconduct or misbehavior.

Despite this, acknowledging the employee's financial difficulties, the company paid him one month's salary. Our CMD has instructed us to pay him three months' salary to maintain the company's goodwill and avoid unnecessary legal disputes.

However, our COO disagrees and wants to contest the case, believing in the company's rightfulness. Our GM HR supports this stance, and so do I, having witnessed the incidents.

Therefore, I seek your expert advice and suggestions from both perspectives.

Thank you.

Regards,
Chitralekha

SR HR ADM Officer

Nirmal Lifestyle

If it's clearly mentioned in his appointment letter that in case of misconduct, the employee will be terminated without notice pay, then there is no need to pay him anything towards the notice pay. But yes, you should have all the required proof and evidence that misconduct or misbehavior took place. If he challenges the termination, the termination should be justifiable with all the evidence, like memos which you issued him, witnesses, etc.

Regards,
Rajeev Dixit

Thank you so much for your reply, Rajiv sir. As far as evidence is concerned, nothing in writing is there except email communications (whether accepted as evidence or not is doubtful). He had been verbally warned many times, and when the written counseling letter was drafted to hand over to him, he denied receiving it, as I mentioned to you. We are fighting this case, and I hope the truth wins.

Regards,
Chitralekha

Thank you so much for putting in your efforts and contributing your valuable suggestions. Yes, you are right that his notice period in the Appointment letter was 3 months. However, as I mentioned, it is also stated in the Appointment Letter that if termination is due to misconduct, no pay will be provided.

I completely agree with your suggestions, which will definitely help me in the future. Even the point about the Chargesheet is acceptable. However, in our office, this was the first case we were facing, and my seniors didn't want to act harshly on the matter. Therefore, we were mistaken in handing over a Chargesheet to him. As you mentioned, the counseling letter was not sent to the employee's residential address. Nonetheless, my COO informed the top management and GM HR on the same day via email that the employee had refused to accept it.

We have printed out all the email communications related to the above issue, and if the court accepts it as proof, the matter may be resolved easily.

Thank you.

With Warm Regards,

Chitralekha

Legal Case Against Employee Termination

Do not fall prey to the unjustified demands of an errant employee. State the facts as they were. Fight in a court of law if he persists. I do not think he will persist. Alternatively, find out about his current job.

[QUOTE=Chitra Upadhye; 2013870]Greetings to all Seniors,

After one month, the same employee filed a case against the company, claiming he was terminated without prior notice and should be paid for three months' notice pay.

Firstly, I think it was the right decision to terminate such an employee rather than having them on board. Also, when you have this point mentioned in the appointment letter which states that if termination is due to misconduct, then no pay will be provided, it's a very strong point that your legal team will support you on.

If there is any proof of counseling provided to him, it will be an added advantage to win the case. Your employees who have actually witnessed his rude behavior can provide good support to close this case. Nothing to worry about; I guess your team will win.

Regards,
Chanchal

He is a management employee of the company. If he wants to file a case against the company, he will have to do so under the Contract Act, which falls under the purview of the civil court. Please send a detailed reply to his legal letter. Additionally, draft a legal letter addressing the threat to defame the company's name.

I really fail to understand how a company like Nirmal Lifestyle can't afford a good lawyer to address such legal queries. Why have you raised a question of such a sensitive nature on a public forum along with your company name?

Regards,
Octavious

This is Basha from Hyderabad. I support your CEO's decision to take action against the employee who was misbehaving with other staff. You have shown that all employees are equal when it comes to discipline. You should take some employees to court as evidence to prove what he has done. Tell the court that you brought him because you don't have any written evidence since he refused to receive any letters from you. Also, mention that you did not state the reason for termination because he requested you not to.

Be careful in the future.

Regards,
M. Mahaboob Basha
Manager - HR
Prime Hospitals

The mistake that can be considered in this case is taking his request of not disclosing the reason for termination and considering him on humanitarian grounds. As HR professionals, we cannot be lenient towards such individuals. It is clearly mentioned in the appointment letter that in cases of misconduct and misbehavior, an employee can be terminated without any notice pay. However, because of his request not to share the issue with anybody, if you haven't included the above-mentioned reason for termination in the termination letter, then I believe you can't take any action. You should have stated the correct reason in the termination letter. It is important to gather strong evidence and witnesses.

Thank you.

I very much agree with what Octavious has replied. Why are you discussing this issue on a public forum and also with your COMPANY NAME...? I don't think you need to play any role in this. I would suggest not disclosing such confidential issues on public forums and letting your Top Management solve this issue. I understand that you may be seeking information, but disclosing the company's name is not the right way to seek knowledge. By doing this, you are somewhat spoiling your Company's goodwill on the public forum.

Thanks & Regards,
Priyanka Vinda
Sr. Manager - HR

I fully agree with what Octavious has said. In fact, when I was going through the thread, the first thing that came to my mind was how the company name is disclosed. Anyhow, email communications, letters of appointment, etc., are good support for your case.

Regards,
JMK

However, the employee got on his knees and begged not to disclose the reasons for termination in a letter for the sake of his secure career. His request is being considered on humanitarian grounds, and the termination letter was issued accordingly. The company also paid him one month's due salary for his working period, along with other allowances like bonuses and leave pays.

Above facts are very important and, in fact, the turning point in the whole episode.

Termination of an Employee: Grounds and Procedures

Termination of an employee could be on different grounds. In this case, right from the beginning, it appears that there was a case of bad behavior which led to the decision of his termination. However, if he had to be terminated on these grounds, there was a need to follow the established procedure of disciplinary actions in terms of relevant service conditions. He was required to be considered for any salary or notice period.

Termination for Reasons Other Than Disciplinary Grounds

For reasons other than disciplinary grounds, if his services were to be terminated, there was only one option in this case: to follow the termination clause in his offer of appointment or other service conditions. If it is by either side through a notice for three months or salary in lieu thereof, the same should have been followed.

As neither of the above has been done, and you ended up terminating his services without assigning any reason by giving one month's salary, the terminated employee has a point. In my view, his demand for three months' salary in the given situation (not terminated on the grounds of discipline) holds water.

Many friends have contributed their valuable suggestions about this, but to win the case, proof is required. The court gives results based on proof only, and as they say, nothing is written. You should create proof of his rudeness with subordinates and juniors in written form, backdated with reminders as 1, 2, 3. Create all proof of meetings regarding his behavior. Contact the advocate for further guidance.

The termination of an employee's services under reference is due to certain misconduct, as mentioned by you. However, this is not duly proved either by notice/enquiry or any documentary evidence, which is required in court. The domestic enquiry, which we conduct for misconducts mentioned in Standing Orders, is not mandatory, but at least you could show to all employees that you have given ample opportunity. This could have sent a strong message in the organization.

If in the termination order you have mentioned the misconduct and related details for which you have terminated the services, then it's okay. But if you have merely terminated services without any reference to misconduct, then you have to pay notice salary.

I have mentioned the above because if his termination is set aside in court, then the court can enhance the compensation.

Since the employee under reference is not a workman as defined under the ID Act 1947, the remedy of reinstatement with or without full back wages is not available to him.

These types of incidences show how HR handles complicated issues.

Regards,
SDP

I endorse the views of Mr. Govindsingnegi. The whole issue hinges on two aspects: 1. The notice period mentioned in your appointment letter and 2. The reason cited for termination in your termination letter.

It seems that you have not mentioned misconduct as the ground for termination in your termination letter. If so, you may not have a good case in a court of law in the absence of unequivocal evidence regarding the misbehavior/misconduct of the terminated employee. Of course, you have said there was an email circulation among the members of top management about his refusal to receive the notice. But it will be attacked by the employee's side as subjective evidence unless you have any other evidence pertaining to the ousted employee's deliberate refusal to receive the notice. As Mr. Govingsing rightly said, if you had sent a notice by R.P.A.D and if he had refused to receive the same, it would have been evidence of willful refusal to receive the notice. Since you have not done so, you cannot take a stand of willful refusal to receive the notice. Besides that, if you have obtained any written request from the employee for not mentioning misconduct as the reason for termination and consequently you have not mentioned the same reason based on humanitarian consideration, you can use that letter as evidence against him.

If you have not obtained any written request for not mentioning misconduct as the reason for termination, the terminated employee's claim for 3 months' compensation may be held correct by the Court. So it is prudent to pay him the compensation and treat such payment as expenditure to learn a lesson about people and procedures instead of wasting time, energy, and money on the legal process.

I want to know if the company is terminating any employee, then what is the process and what does the company have to pay for the termination.

Regards,
Nitesh M.S

I have gone through your notes and the comments of many senior members. I know they are not wrong and may be administratively correct to some extent, though they might be too strict. I want to tell you something for your future, as one day you will be the HR Head of an organization. Please remember this: "If ever you are left with no other option but to sack someone for reasons other than embezzlement, pay them all their dues, including leave pay, and show them that your company is generous and it is they who have forced you to take such action."

Anyway, let's address the present problem. If possible, please submit the following to your MD:

1. It appears the COO of your Pune Unit is hiding something and may have been partly responsible for the rude behavior of that person towards some employees.

2. Your company does not have any documentary proof to support the claims of your COO or HR.

3. Your HR has not followed the set procedures required before the sacking of an official, especially at the level of Sr. Finance Manager. I also presume that the manager was quite efficient in his work, as you don't have any complaints about his efficiency.

4. Your MD was right in wishing to pay him the notice period salary, which your COO has declined due to personal vendetta against this officer. Your company does not have any proof to counter the claim of that manager in a court of law.

Court Case Outcome

Now, regarding the court case, based on the given facts, your company will likely lose this case, including costs and damages. Moreover, if the advocate appointed by the manager is a real expert, your company may be forced to reinstate him.

I feel to avoid all this botheration, you may arrange a meeting with that manager by calling him to the office. I doubt that person may not speak to the HR head as he was involved in his sacking. If your MD agrees, request him to speak to the manager. This will not only pacify him and sort out the problem but also may allow the company to gain some information about wrongdoings at the Pune Unit, which may have led to his removal. Moreover, if the person was efficient and honest, there is a chance that he has rectified his mistakes and can be utilized at another unit. Please remember, honest finance people are often blamed by dishonest employees as rude or arrogant.

One thing I am sure of is that after meeting with the MD and paying him the dues, he will be pacified and agree to withdraw the court case.

Final Advice

One last thing to remember: always try to avoid sacking any employee, and even if you have to sack one, pay them generously unless they have committed some embezzlement, so they should feel guilty for their mistakes.

Regards.

Please pay him three months' salary as mentioned in the appointment letter. Your company can't fight this case with successive drive. Here, you should take care when he was begging, not to disclose the termination reason on his full and final letter. You should have asked him to write an apology letter by stating about his career and by considering his request not to disclose the termination issue.

The time has passed now, and there is no need to fight further.

Best Regards,
Sajid

After going through the above deliberations on the subject by you and others, I have some differing opinions. If you choose to fight the case, it is acceptable as long as you are in the right. However, consider this scenario: if a company employee leaves and joins another company, speaking positively about your company, wouldn't that enhance the image of your company? In this specific case, there is clear evidence of the employee misbehaving despite receiving several warnings and counseling. Nevertheless, looking at the other side, there are humanitarian aspects to consider as well. The reasons for misbehavior could stem from illness, family issues, or frustrations.

Upon deciding to terminate the employee, it would be humane if your company offers the employee 3 months' notice pay and closes the matter once and for all. This approach would resolve many headaches and financial burdens for both sides (employer and terminated employee). Ultimately, the issue at hand is the payment of 3 months' notice pay. Additionally, it is important to take into account the employee's length of service.

Regards,

Many experts are contributing their valuable suggestions about this, but to win the case, proofs and documents are required. The court gives results based on proof only, and as mentioned, nothing is written.

As you mentioned above, you have given verbal warnings many times but received no positive response so far. I have a question for you: have you issued the warning letter and termination letter? The answer is no.

There is a step for misconduct or indiscipline. When an employee is found in consecutive misconduct or indiscipline, who always stands opposite to the system, first give them verbal clarification about their acts and deeds, which have been unfavorable for your company on behalf of that errant employee. Tell the errant employee that if they do it again, disciplinary action may be taken against them, and their service may be terminated.

If they show misconduct again, issue them the first warning letter, specifying the guilt and course of action that is unacceptable by the company. Also, specify the outcome of that warning letter. The management must have the receiving copy of that warning letter, which must be duly signed by the employee. If they again show indiscipline at work, issue them a final warning letter, clearly stating the reason for terminating them from the service. Take the receiving of the warning letter and paste it with their full and final settlement and no dues slip.

In that case, it is quite necessary to prepare the HR Policy. As you mentioned in your appointment letter, if the employee is found in misconduct and indiscipline, no notice pay will be given to the employee. I think this is not a solution; somehow, it may be a little bit of a plus point for you. But if you could take this action chronologically in written form, then it would have been better.

I am attaching the HR Policy, which contains policies pertaining to dismissal, indiscipline, misconduct, suspension, etc. Kindly go with that.

Disciplinary Policy

The Company Disciplinary Procedure will be used only when necessary and as a last resort. Where possible, informal and/or formal counseling or other good management practices will be used to resolve matters prior to any disciplinary action being taken. The procedure is intended to be positive rather than punitive but takes cognizance of the fact that sanctions may have to be applied in some circumstances. An employee can discuss any part of this policy with their Line Manager. They can help clarify an employee's rights as well as give guidance and support where it may be needed. Every individual has the right to representation at any point during the disciplinary process.

Suspension

Suspension is not disciplinary action. The purpose of suspension is manifold and can be used when it is necessary to remove a member from the workplace pending an investigation, for example, to allow time for a 'cooling down period' for both parties, for their own or others' protection, to prevent them from influencing or being influenced by others, or to prevent possible interference with evidence. Only the Manager in charge of that individual, at that time or their superior, has the authority to suspend an individual. An employee suspended from duty will receive written confirmation within three days of:
- the reason for the suspension
- the date and time from which the suspension will operate
- the timescale of the ongoing investigation.

Warnings

Examples of Minor Misconduct

Below are listed examples of misconduct which may warrant either a Verbal Warning or a First Written Warning. It is stressed, however, that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issue of a warning.
- Persistent lateness and poor time-keeping.
- Absence from work, including going absent during work, without valid reason, notification, or authorization.
- Smoking within unauthorized areas.
- Failure to work in accordance with prescribed procedures.
- Incompetence.
- Unreasonable standards of dress or personal hygiene.
- Failure to observe Company regulations and procedures.

Verbal Warning

A Verbal Warning is appropriate when it is necessary for the manager in charge to take action against an employee for any minor failing or minor misconduct.

First Written Warning

A First Written Warning is appropriate when:
- a verbal warning has not been heeded and the misconduct is either repeated or performance has not improved as previously agreed.
- an offense is of a more serious nature for which a written warning is more appropriate.
- the recurrence or accumulation of an offense/offenses, if left, will lead to more severe disciplinary action.

Examples of Gross Misconduct

Listed below are examples of misconduct which may be considered to be Gross Misconduct and may warrant a Final Warning, Demotion, or Dismissal. It is stressed, however, that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issuing of a Final Warning, Demotion, or Dismissal.
- Theft, including unauthorized possession of Company property.
- Breaches of confidentiality, prejudicial to the interest of the Company.
- Being unfit for duty because of the misuse/consumption of drugs or alcohol.
- Refusal to carry out a management instruction which is within the individual's capabilities and which would be seen to be in the interests of the Company.
- Breach of confidentiality/security procedures.
- Physical assault, breach of the peace, or verbal abuse.
- False declaration of qualifications or professional registration.
- Failure to observe Company rules, regulations, or procedures.
- Willful damage of property at work.
- Incompetence or failure to apply sound professional judgment.

Final Written Warning

A Final Written Warning is appropriate when:
- an employee's offense is of a serious nature falling just short of one justifying dismissal.
- an employee persists in the misconduct which previously warranted a lesser warning.

Dismissal

Dismissal is appropriate when:
- an employee's behavior is considered to be Gross Misconduct.
- an employee's misconduct has persisted, exhausting all other lines of disciplinary procedure.

Letter of Warning

All Warnings must contain the following information:
- The letter must be issued within 7 days of the date of the disciplinary hearing.
- The nature of the offense and where appropriate, that if further misconduct occurs, more severe disciplinary action will be taken.
- The period of time given to the employee for improvement.
- The employee's right to appeal to the manager directly above that of the one issuing the warning.
- A copy of the warning and any supporting documentation must be attached to the individual's personnel file.
- The employee must also receive a copy of the warning, which in the case of any written warning, will be sent to their home address by recorded delivery if not handed to them in person.
- In the case of a final written warning, reference must be made to the fact that any further misconduct will lead to dismissal, and that the employee has the right of appeal, and to whom they can make that appeal.

The letter confirming dismissal will contain the following information:
- The reason for dismissal and any administrative matter arising from the termination of their employment.

Thanks

Regards, Vikas Khatter

I have gone through your mail and other members' comments. Considering the facts of the case, you should pay him three months' notice pay (if it is mentioned in the appointment letter (service conditions)). Since management took the decision not to disclose the reason, you also did not follow the required procedure to deal with misconduct. Hence, any claim that he was terminated on account of misconduct is not justified, and it will go against the company in the eyes of the law.

The wise decision is to pay him the required notice pay and have a procedure in place to deal with misconduct in the organization for future cases.

Regards,
Shailesh Parikh
Vadodara, Gujarat
[Phone Number Removed For Privacy Reasons]

I strongly agree with Mr. Naveneet Sarin and other members who suggest giving him his dues and closing the case here. For the future, be ready with all the policies and procedures.

Thanks,
Preeti

I suggest that you revise the appointment letter. When you decide to remove someone due to misconduct, it is important that they have the opportunity to be heard. The disciplinary procedure should have been followed in this case.

Regards,
Chtra

As you have mentioned that you sent him a letter which he didn't accept, and also your Pune COO sent an email to management on the same day about not accepting the said letter, both of these are proofs from your side and prove that the concerned terminated employee was not following the processes.

Additionally, the team who was working under him can be presented in court as proof of misconduct and misbehavior. Since you mentioned that you wanted him terminated, I hope you might have prepared a termination letter with the actual case. If you have prepared that original letter, you can use that as proof as well.

Do your letters have a reference number, i.e., date and numbers for reference? If they do, then your problem is solved. If you want to teach such people a lesson, you can contact his current employer and inform them about the situation with relevant proof.

In my opinion, you are not legally strong enough to fight back as you have not followed the proper procedure required in the case of misconduct. It's blatant to mention the reason for someone's termination. The person is smart enough that he pleaded to not disclose the reason in his termination letter, and you did the same.

As Mr. Sajid said, you must have taken the apology in writing as proof, which was not done. So, as a matter of fact, you need to pay him three months of salary as stated in the appointment letter.

As discussed above by Govind Singh Negi, not accepting the letter itself is an act of indiscipline. Even if he has not received the letter, HR could have sent the same to his correspondence address through AD registered post. Anyways, you can keep this in mind for the future.

I am not aware of the notice period mentioned in the appointment letter. If it is one month, then the employee has no right to ask for three months' notice pay. But, if the notice period mentioned in the appointment letter is three months and the company has paid him only one month's salary, then he can claim so.

It is the best suggestion in all posts. So, my dear, try to understand that it is true that he is not covered under the Compensation Act.

I can understand this is a serious misconduct and no notice pay is applicable, but you do not have any evidence against that employee. Secondly, if you issue a legal letter and other legal formalities, these can be denied by a civil court due to the absence of evidence. The employee can refuse all these. So, pay him three months' notice and avoid future problems. Because the current legal formalities may be considered as a manipulation of the company for the interest of saving money on notice.

Thanks

In my view, he is a conniving individual who is constantly in conflict with the company. The following are actions that should not be taken against him:

1. You should not prepare any evidence against him.
2. You should not issue any memo for his misconduct and misbehavior.
3. You should not conduct any domestic inquiry against him.
4. You should not collect any evidence/written letter from his juniors.

If the management decides to go to court or conciliation, he may win with his persuasive speech. As a suggestion, the HR person should try to negotiate a settlement with him as this could be a better solution. If the HR person is not capable of maintaining strong employee relations, the management should consider seeking assistance from a legal consultant.

With regards,

Mohan J

Reply to his notice by detailing the instances that led to his termination step-by-step. Also, include that you have witnesses and proof to substantiate his misconduct and misbehavior. This approach will likely prevent him from pursuing the case further.

Future Precautions

In the future, remember to follow the process and ensure that every verbal warning is followed by written communication, a copy of which should be placed in the employee's personal file.

All the best,

Richa

I agree with your co-worker and other comments supporting the termination in the forum. However, as someone in the Human Resource department, keeping humanity in mind, since he is begging on his knees not to mention the reason in the termination letter, you could have requested resignation and closed the matter. Now, you have invited the employee to go to court. Why can't you understand that you should have closed the profile then and there, instead of engaging in unproductive work for such issues? Moreover, the company will not gain anything from this. If the employee wins, you will have to pay him the notice period, or if you win, you are just wasting your time.

Keeping in mind to do some productive work, the management was right in this issue. Close the file and hire a new one... that's all.

Regards,
Ravindra
HR - Bangalore

Let us know whether you have cleared all the formalities during the full and final settlement. If in the document, he has written that he has no pending dues upon him and has signed, then there is no need to proceed with this case.

Regards,
Soniya Bhardwaj
Manager HR

There are a couple of personality traits that are vital for group dynamics, and candidates must be screened for these during the recruitment process or, at the most, during the probation period. They are:

- **Social Effectiveness**: The ability to stay together with the group and contribute positively.
- **Cooperation**: Being cooperative with team members.
- **Sense of Responsibility**
- **Liveliness**: The ability to stay composed under duress and remain effective during ambiguity.
- **Courage**: Both physical and moral courage.

Lack of any one or all of these traits should raise alarm bells. No amount of competence can compensate for the absence of these qualities. The Senior Manager Finance fails on all counts.

Unfortunately, despite all the background checks, various selection tools, and due precautions, undesirable elements do manage to get recruited. The reasons are many: hurry to recruit, seemingly good profile, subjectivity during interviews, etc. However, the probation period is meant to check such attitudinal aberrations. He should have been let go and should not have been confirmed.

Compared to other industries, the construction industry suffers from the quality of manpower all around the world. I was part of a $19 billion USD project abroad, with 50,000 workers from more than 52 countries. You had excellent professionals, and you had the worst of rogues too. A typical HR atmosphere is missing, and the HSSE does the bulk of the jobs. However, the rules are always stringent: either you follow the company rules, or you are out. As rightly pointed out, he is not a workman. As per his contract, his misconduct deserves termination, and no legal system approves of such litigation by a manager.

In case your CMD wishes to close the case, it must be to hush up the issue and avoid any legal hassle. However, we may be setting a precedent for more such litigations. Hence, the decision of your COO and Head HR to fight it out in the court of law is not out of place.

Kindly remember that in office procedure, there is nothing called verbal counseling. We do it out of good faith, but all such meetings, counselings, written advisories/warnings, etc., must be recorded. His refusal to accept the letter should have been endorsed as such by a witness, and records kept. A good chit to such black sheep will only propagate the misery of many companies in the future and does not deserve sympathy for the common good. I know of one AGM HR who was fired for misconduct and could not get another job.

Even if the company's name has come by mistake, there is no harm done. We as a community are in a learning curve. The best companies learn from their own failures and make their own case studies. Great people make fun of themselves and laugh it out. No big deal.

I suggest to all my HR colleagues to keep the probation period to analyze and confirm behavior patterns before confirmation. Skills can be trained and improved, but bad character traits are not trainable. People suppress them to hide their abnormality, but deliberate stress management brings the true self out in the open.

I also look forward to many more suggestions from this learned galaxy of professionals.

Regards,

I have gone through the facts of the case and members' comments. There are clearly certain lapses in handling the case which may make your case weak in court.

1. In such circumstances, you should have obtained his resignation instead of choosing the route of termination.

2. Even by terminating his services, you have not adhered to the terms of the appointment letter in letter and spirit, which permits you to terminate his services in the event of any misconduct committed by him. By refraining from mentioning the cause in the letter of termination, you rendered the termination plain and without any justification, violating the terms of the appointment, let alone the principles of natural justice.

3. Even if you present letters of warning and counseling regarding his past bad behavior, the court probably may not take cognizance of the same, since those incidents were closed by the said letters of warning, etc., and do not constitute a present cause for his termination since you failed to relate them to his termination. You cannot now do it behind his back, which is violative of the principles of natural justice.

4. Even if there is an enabling clause in the letter of appointment empowering the employer to terminate the services of an employee in the event of any misconduct committed by him, the courts may not permit a summary termination for misconduct without hearing him as per the principles of natural justice since the allegation will be stigmatic and hurt his career and livelihood. You should have issued a charge sheet or at least a show-cause notice putting him on notice of his alleged behavior, and he should have been heard in respect of the charge. After hearing him, you should have taken an appropriate decision.

5. Leave alone issuing a show-cause notice, you have not even mentioned the reasons for termination acceding to the request of the employee.

You should consider the chances of your success in court with the help of a specialist in the matter and then make a decision. The employee may also come up with his own theories of prejudice, etc., against you which you need to defend in court. It is not easy to convince courts and to withstand the examination by the employee's lawyer without solid evidence. You should first ascertain from your advocate whether the evidence you have to defend your action will be adequate to support your decision. You always need to take a considered view but not an emotional view in such matters; otherwise, you will be beating a dead snake and shedding a lot of sweat, finally realizing that all the effort has gone to waste.

Regards,
B. Saikumar

Mumbai

I support M. Basha's concepts. You have to submit to the court all letters received and provide a copy to the employee, whether it is a hard or soft copy.

Process for Handling Employee Termination

The process should include:
- 1st advice letter
- Warning letter
- 2nd warning letter
- Final letter

Regards,
S. Rao
Executive HR & IR

Termination on Grounds of Misconduct

In any termination case on the grounds of misconduct, it is necessary to establish the charges leveled against the employee. Only thereafter can an employer or company terminate the person. Alternatively, the employer can hold a suspension pending an inquiry against the charged employee until the charges are proven.

Secondly, if it is mentioned in the appointment letter that in the case of termination by the employer, no payment of the notice period will be made by the company to the employee, then the company shall not be liable to pay the amount of the notice period.

I just want to know for what reason you have given in the termination letter because you have stated that after his request, you have not mentioned a reason "MISCONDUCT." If you have not mentioned the reason for misconduct in the termination letter, then what is the basis for terminating his service due to misconduct?

Regards,
Vijay

I have gone through almost every posting in this thread. In any legal matter, I do not wish to make comments without reading all the documents pertaining to the case and seeing all the facts and figures, but still, I say that prima facie your case seems to be weak. However, I would like to give certain tips to all the members so that they can take care in the future in such or similar circumstances.

1. It is always beneficial to obtain resignation from certain classes of employees rather than issuing a termination letter.
2. Collect as much documentary evidence as possible before taking any action.
3. Once you take any action, be firm in your decision regardless of the consequences.
4. While taking action, you should be very fair and reasonable.
5. Avoid mentioning the name of the company or individual when posting any kind of issues in a public forum.
6. Do not include your name at the end of a post when you wish to remain anonymous.

Thank you.

Do you have proof of a complaint from his subordinates that their head is troubling them? How will you prove that he was displaying rude behavior? If you have written a complaint against his misconduct and if a letter was issued to him based on that complaint, then only I think the court will listen to you. Otherwise, as per the contract, you have to give three months' pay because you only paid one month's pay, which indicates that you are terminating him abruptly and not on grounds of misconduct, especially since you paid only one month's salary. The court may argue that he is asking for three months' salary, which is why you are now presenting fake evidence.

Regards,
Rajiv Sinha

First of all, the action is appropriate. In the future, in such cases, if he requests the management not to put any adverse notes on the termination letter, then at that time, ask such a person to submit his resignation. Based on his resignation, the separation process has to be initiated.

Secondly, you have not mentioned where (in which court) he has challenged his termination. As a managerial role, he is not entitled to challenge this matter in the Labour Court.

Regards,
M. Gohel

Legal Strategy for Employee Termination Case

Clearly, the man has no principles based on what has been stated. Just fight the case in court and bring out witnesses who have heard the words used by him, his rude conduct, etc. Find out who his new employer is and let them know of his character. Even an email will be accepted as evidence. If three months' pay was specified, why did he not raise the issue of being given one month's pay? All this is proof against the individual. The case filed by this employee will fall if dealt with carefully, by marshaling all evidence against him. Everything need not be in writing always. Oral evidence by employees will have value, though they will have to face cross-examination where they will be labeled as partisan witnesses. Do not compromise with unscrupulous people.

The employee got on his knees and begged not to disclose the reasons for termination in his letter for the sake of his secure career. His request has been considered on humanitarian grounds, and the termination letter was issued accordingly. The company also paid him one month's due salary for his working period, along with other allowances such as bonus and leave pays.

As per the above sentence, you are going through the termination process as per company HR policy, and you are also paying the one-month salary.

I want to ensure you that as per the rules and regulations of the company, personal feelings are not considered. If it is stated in the appointment letter that in case of misconduct or misbehavior, the employee will be terminated without any notice pay, then why are you granting this favor?

Therefore, if the termination is being done through the HR process, then he should be eligible for the pay.

Thank you,

Regards,
Niraj Kumar
HR Officer
[Phone Number Removed For Privacy Reasons]

Hi Chitralekha! Greetings! As per my understanding, the employee you have terminated is not a workman because of the definition given in Sec 2(s) of the ID Act, 1947. It is a matter of contract law, so it can be decided by the labor court. Actually, while giving any opinion and judgment, it must be objective in nature. And, as you know, the labor court will not act as a civil court. So, while the labor court will probe into the matter, the bench will find out if the employee was terminated because of misconduct and if it is a disciplinary action. So, you must not worry, but as I say, you must next time send the mail regarding warnings. He can deny receiving the letter but cannot deny the mails, and he cannot say that he hasn't seen the mail because it's his fault. So, take all evidence in the form of documents and persons; you will win for sure. Proper homework will be required.

Best wishes! Regards, Anoop Singh