Seeking Advice: How to Clear My Record After Unfair Dismissal for Non-Performance?

I request help from all experts in HR policies and norms to provide advice and direction to correct the wrong. I am an ex-employee of xxx, part of company Y in Bangalore. I was employed with them from 2nd November 2010 to 7th September 2012.

During my tenure, I was an excellent performer, always gaining rewards and recognition for my consistent performance, whether in quality, adherence, or professionalism, until all this changed.

The Feedback Incident

This whole issue started when we were given an opportunity to provide discreet feedback for our reporting QA’s and Unit Managers. We all did so; however, it became problematic when our Ops Manager started pestering us to figure out who had shared which feedback. This went to the extent of matching handwriting, as no names were given on the feedback forms. This was against the objection of all the concerned employees in the team. After all the pressuring and pestering, I was forced to confess that I had shared the honest feedback they had a concern with.

Violation of Open Door Policy

In an organization like xxx that follows an open door policy, it was very disturbing how I was put through hell based on the feedback. Please note that this was supposed to be discreet and honest feedback for our reporting QA and Unit Managers. HR was called upon, and I was threatened by the HR and my reporting Unit Manager to write a confession that I wrote that feedback, which was very alarming and disturbing for me because of the kind of dedication and effort I put into my job. I was yelled at and treated like a criminal in a closed room for a company that follows an OPEN DOOR POLICY.

Forced to Sign PDAP

As this disturbed my whole belief system in the organization, I put down my papers. But guess what, it did not end there. I was again approached by the HR and my UM to sign a PDAP. I signed the PDAP on 8th August 2012 at 8:15 to 8:30 pm. I went to them after I put down my papers at 7:40 pm on 8th August 2012. Now they say I signed the PDAP at 4:30 pm, which is a lie.

As before, I attempted to explain to them that I would not sign the PDAP as it was issued after I had already put down my paper. All the threatening, pestering, and pushing started again in a closed room. Through all of this, our Operations Manager acted like an OWL as the Unit Manager was the favorite. I was forced to give in and had to sign the PDAP.

Relieving and Non-Performance Claim

Upon my relieving, I realized that I had been relieved based on Non-Performance. I was shocked. How can it be non-performance? I resigned. I was the best performer. I had earned them praises from the clients. I was a contributor to their business. How can anyone who works with integrity be treated like this? I even reached out to the Whistle Blower; however, nothing was initiated.

I need help. I want a clean relieving. I worked very hard. I gave my best despite all odds. No one at the company will help me. Time has passed, but this is affecting my career and my dignity. Please advise. What should I do to get this off my record? This is based on lies, unethical actions, and unprofessionalism. The feedback was meant to be discreet. This whole thing was a game played to pamper personal vendettas.

Regards.

"King knows what his courtiers want him to know." This is what Shakespeare said in his famous play Henry V. If it is assumed that whatever you have written in your post is true, then it can be said that you are a victim of going contrary to this famous statement. Today, kings are replaced by managers. To progress in a career, one has to keep managers in good humor. This simple truth of life—how come you did not understand?

Who told you to give negative feedback about your manager? You should have saved your skin first. When you did not do that, you ended up burning your skin. Do you think that the wrong management style of your managers was not noticed by their seniors? If the seniors of the Ops Manager or QA Manager were fine with having these inferior quality managers, then who told you to take this unwanted risk of honest feedback?

American MNCs are no guarantee for just and fair treatment. Scratch the superficial gloss, and you will find that they are like any other Indian company. This facade of MNCs sometimes crumbles, and we end up reading the following type of news:

"Pay techie Rs 12.5 lakh for sacking her, Karnataka labour department orders US-based firm - The Times of India"

Now you are relieved from the company. Have you received the experience certificate? Has it been mentioned on your certificate that you have been removed on account of "poor performance"? If not, then why bother about the past? Let your past employers be what they are and let them live the way they wanted to live. You better start searching for a new job.

If there is a negative remark on your experience certificate, then you have two options. The first one is accepting it as it is and taking it as your fate. The second one is to approach the court and file a suit against your past employer. However, for the second option of litigation, what evidence do you have of your stellar performance? Either way, what evidence do you have to prove you have been treated unfairly? Without this evidence, there is no point in approaching the court.

If you have been removed on account of poor performance, then your company should have conducted the domestic inquiry. Removal of an employee without a domestic inquiry is illegal. A large number of high courts have given verdicts to this effect.

Certain terms that you have used in your post like PDAP or "Open Door Policy" are not understood. Does "Open Door Policy" mean that for the redressal of your grievance, you are able to approach your seniors easily? In that case, to what level did you highlight the unfair treatment that you were met with? Why did you not approach Mr. _______, CHRO of your organization? Before approaching the court, I recommend you knock on the door of CHRO or CEO. Send the Registered/AD letter and write in sequence what happened. In your post, you have mixed your logic and facts. Do not do that while writing a letter to them.

Wait for their reply, and then decide the future course of action.

All the best!

Regards, Dinesh Divekar

As you are clear from your own point that it is a personal vendetta, how can you expect justice there? Okay, what happened has happened. Have you mentioned that you were shocked because of the relieving letter due to non-performance? Is this term specifically mentioned in your relieving letter?

1. If not, don't care for the atrocious behavior of your past employer. The world is like that; try to learn from your experience, as one of my friends has precisely mentioned in his reply.

2. If explicitly mentioned, it is the issuing authority who has to rephrase and give it as clean. The only option is to approach your past employer. If you go by any sort of legal means, it may take a huge amount of time, and the result may not be in your favor.

Mentally be prepared for what may happen. Be cool; life doesn't end there. You have a bright future.

All the best!

Dinesh and Vivek,

The point is that our friend would have to show his relieving certificate wherever he goes for a job. There are a few questions in my mind that are playing:

1. What was the Job Description of our friend?
2. Was he a team lead where people were reporting to him?
3. Did he ever sanction or recommend anyone's increment or leave?

Only after receiving the answers to these queries can a solution be worked upon.

Regards

Dear Mr. Dhruva Trivedy,

I have raised the question about the negative remarks in the relieving letter issued by his past company. The poster has not specified that. I have given both options on what he should do, i.e., if the relieving letter is neutral or with negative remarks. In fact, if the relieving letter is neutral, then I have advised him to let it go and move on.

The poster is overwrought because he has been removed on grounds of poor performance. His professional pride is unable to accept this reason, hence his post.

The poster is not seeking redressal of his grievance under the provisions of the ID Act, 1947. Hence, Questions 2 and 3 of your post do not arise. Question 1 is not so much applicable because he has not mentioned anything about a mismatch in Job Description and allocation of work to him.

Thanks and regards,

Dinesh Divekar

Thank you for your responses, Dinesh, Vivek, and Dhruva. I would like to start with the reference here; I am 'Her' and not 'His'. The post is made by a female employee.

Understanding PDAP

PDAP stands for Performance Development Action Plan. Usually, it is issued to non-performers technically; however, here it is also issued in case of disciplinary issues.

Challenges with the Open-Door Policy

You are correct about the open-door policy logic. Why was the CHRO not approached? Because even though there is an open-door policy, as you correctly stated, "the King knows what his courtiers want him to know," which stands true in this scenario as well. I did not get proper guidance and was overwhelmed by the experience I was going through. That's why I did not. I was taken into a closed room and drilled by my Unit Manager and the HRBP. This itself got me so shaken up. I did approach my Ops Manager and the Sr. Ops Manager. Little did I know Shakespeare knew it all. But now I want to get this corrected. At that moment, I did try to address this to The Whistleblower, as I wanted this to be handled carefully and not blow out of proportion. However, it seems like I took the wrong path.

Relieving Letter Concerns

Yes, the relieving letter (experience letter) states that I was relieved based on non-performance. Can I prove it wrong? Well, one can go back on her records with the company, or would it be of any significance that I have been awarded trophies and top performer certificates by the process and clients month on month.

Seeking Clarification and Next Steps

My designation was SR CSR. I agree with Dhruva. My relieving letter states non-performance, whereas the company had no reason to put that and should have given me a clear relieving. This does affect me when I look out for better opportunities.

Dinesh, can you please elaborate on Domestic Enquiry? What do you mean?

What should be my next step? How do I fix this?

Thanks

Termination on Grounds of Poor Performance

If your termination is on the grounds of poor performance, then your company should have conducted a domestic inquiry before terminating you. Ours is a democratic country, and the principles of natural justice are supreme. If these principles are not followed, courts have treated the dismissal as null and void. In a domestic inquiry, the employee is given complete freedom to defend his or her case. Since no domestic inquiry was conducted, there appears to be a violation of the principles of natural justice.

Mentioning the grounds of termination as "poor performance" in the experience letter is purely out of malice. Many companies keep the certificates neutral. Your certificate indicates that some senior functionary from the HR department is involved in taking revenge against you.

Steps to Address the Issue

At this stage, you have to do three things. The first is to write a letter to your CEO enumerating the whole situation. However, I doubt whether he will really take interest in your problem because CEOs are known to rely on the brief given by their immediate juniors. If no reply is received or if the reply is not favorable, then you may send a lawyer's notice. Again, they may not budge; that is what I feel. The last resort is to file a suit for illegal termination.

Questions Raised by Mr. Dhruv Trivedy

Now coming to the questions that Mr. Dhruv Trivedy has raised: What was your designation, and how many persons reported to you? If nobody reported to you, then the provisions of the Industrial Disputes Act, 1947, are applicable to you, and you can approach the Labor Officer (LO) of your area. Find out what the LO says. Who knows, possibly the LO may rule to restore your services. This will make your case a little stronger. Of course, your company may not accept the verdict of the LO as it is not binding on them.

In my previous post, I have given a link to news from the Times of India. Go to the office of TOI and find out whether they are ready to share the contact details of the petitioner of that news. Like the woman employee mentioned in the news, you too may approach the office of the National Council for Women (NCW), Karnataka Chapter. Check whether they are ready to issue the notice independently to your employers.

All the best!

Regards,
Dinesh Divekar

The idea proposed by Dinesh seems to be more pragmatic. However, in my view, you should seek mental peace by resolving all these problems. It is uncertain how much legal measures can assist you. It is advisable to approach the Deputy Commissioner of Labor in your jurisdiction, request employment, and attempt to resolve matters amicably with your former employer to have the relieving letter amended.

Please elaborate on your issue to the Deputy Commissioner. As Dinesh correctly pointed out, it constitutes a breach of the "Law of Natural Justice." My suggestion is to notify your previous employer via registered post regarding the law of natural justice and the unfair labor practices against you.

You can request a response from them regarding the allegations and notify them of your intention to contact the labor department (I seek confirmation from my seniors to support my suggestion). Clearly state the significant violation of not conducting a local inquiry and understand that they cannot disregard your input by creating records without your acceptance signature on the inquiry report. Therefore, such low-level politics will not impede your progress.

Be assertive; we are here to assist you.

Steps to Address Employment Dispute

Download the published version of PDAP in soft or hard copy, and present it along with the appointment letter, service rules and regulations/HR policy mentioned in the appointment letter, rewards/awards/appreciations, feedback submitted by you, narration of events as posted in this thread, relieving letter, etc., to a competent Labor Law Consultant or Service Matters lawyer. Submit a fitting representation to the appropriate offices of the appointing authority.

You need to contest now.

I have been on both sides of the table, where I blew the whistle and then managed cases where the whistle was blown. Take my words, the risks are far greater than any gains for both parties.

An open-door policy is inevitable, yet I have yet to meet any leader who can walk into the room and accept his or her faults. Hence, I write from that premise. Expect almost no returns since you raised the storm. I am still blacklisted and have a 'No Hire' in the company where I blew the whistle. Much like you, before it all happened, I too was a top performer and was given a hike and promotion in less than six months of my joining. No matter what they write and store in their records, I have their letter of appreciation with the salary hike and new designation to me.

Yes, you are on point in imagining they are going to affect your career. I too remained unemployable for a while. Thankfully, my life didn't end there, nor did my career!

Options for Moving Forward

You have three options now. The first is to fight just as Dinesh has mentioned, taking the labor court way. You are, of course, free to speak to the CHRO. But expect little difference in the result, as his data is based on what your reporting managers had filed. The third is to spend an equal amount of time rebuilding your career from the ground up.

Your ex-employer can write all the nasty comments during your reference check. And you still have their very own appreciation letters to counter.

Please be open with your prospective employer while sharing facts. If you were a great performer for two good years, then suddenly you couldn't have gone brain dead and lost it in the next two months. These situations are way too easy to be read. Any hiring manager can see through. However, you confirming your part would help them arrive at a decision.

For a while, take up a job with a tech firm that wouldn't lose their sleep over what your ex-employer says. Look for startups. Talents like yours would be highly valued by them.

I too did that. I worked with smaller firms until the stigma no longer mattered to me. Today, you might find it hard to believe, but their CHRO treats me respectfully! No, this is not what we should seek or why we work. But then I guess talent and hard work do prove their point!

Wish you all the best!

Your removal was in September 2012. It appears to be stigmatic. You do not seem to fall under the definition of a workman as per the ID Act. Even if you are covered under the Karnataka Shops and Establishment Act, 1961, under section 39 and its rules, you should have filed an appeal within 30 days. Given that almost two years have passed since your removal, relief may be denied under that Act. It is advisable to file a civil suit for declaration and damages to have the removal order declared illegal.

Regards,

Steps to Address Employment Grievances

1. Submit a properly structured representation addressed to the good offices of the appointing authority, MD, Chairman, GRC. Narrate the events and vindication, and demand to examine the personnel file and to supply you with a copy of your service card. Offer to pay the cost, if any, fixed for it by cheque under proper acknowledgment on the spot.

2. Request to withdraw the adverse/false comments from the relieving letter, personnel file, and service card in writing, with a copy to you.

3. Such good-for-nothing Line Managers/HR personnel are not fit to be left to roam around in a civilized society. Rise and defend your rights. Don't suffer in silence and accept such incidents as your fate and destiny.

4. Become a member of employees'/trade unions.

5. Approach your community leaders.

6. Approach the officials of the Labor Department and proceed legally.

Regards.

Perhaps I would not have continued in the thread that has been posted in today's dak by the administrator, but I felt like pinpointing the shattered inner morale-boosting conscience of the victim who, after suppressing her tormented conscience for about two years following the August 2012 incident, finally spoke out about her dark experience. The treatment of pushing her, yelling at her, etc., was nothing but an attempt to coerce her into filling out the PADP paper so that she could be shown the door. It was akin to extortion under penal law. If the termination appears to be due to poor performance and has not been reviewed by the employer, thus leaving a significant mark on her future prospects, prompting her to seek help from citehr after two years, I believe that she will carry this sense of rejection for a long period in her life.

Civil remedies may take a considerable amount of time, and the employer may heavily invest in defending the said managers, but the quickest resolution could be to file a criminal case of extortion under section 383 IPC against the managers who coerced her into signing the PADP. Given that the punishment prescribed under section 384 IPC is three years, she still has time to file the case as the limitation period ends in August 2015. Once the case gains public attention, the employer may or may not reconsider their actions, but at the very least, the victim's conscience may find some solace in seeking justice by bringing those culprits before a criminal court. The victim must initiate the proceedings through a knowledgeable advocate.

Thanks

Sushil