Feeling Targeted at Work: Can I Be Forced to Resign for Alleged Poor Performance?

Dear All Seniors,

I have been working in a Private Bank for 2 years. In April this year, my supervisor called me for a review and informed me to resign due to my poor performance, stating that if I do not resign, he would terminate me. I have already spoken to my super boss and HR about the same, and they have requested me to explore other options within the bank itself. Just today, I received a rating of 1, which indicates that I have to resign within one month after accepting the evaluation.

Termination Due to Non-Performance

Can a confirmed employee be terminated due to non-performance, and how can I escalate this matter to senior management? My performance has been at par with my colleagues, and I believe I have been personally targeted by my superior.

Please help as soon as possible.

Regards

Has a periodic review been done of your performance? What is the rating in the earlier review? Has any warning or indication been given in normal day-to-day dealings that your work is not satisfactory? You will have to collate facts and figures of our output/work and approach higher-ups about the matter and substantiate your feeling of being targeted. On what grounds are you being targeted? A planned approach with all evidence and figures will give a better result than a mere complaint of personal targeting.

Besides observing the above views of Mr. Nathro, prima facie no charge sheet has been issued, nor has any disciplinary inquiry been conducted. There is no need to resign. Make a complaint to the labor commissioner about the harassment being meted out to you and the threats being given in the form of performance appraisal. It is a virtually unfair labor practice to raise false charges of poor performance.

Thanks,
Sushil

It is quite disheartening to note that a confirmed employee of a private bank has been asked to resign suddenly on the basis of poor performance during a particular period, according to the subjective consideration of the immediate superior. I have several doubts: Whether the episode narrated is from your own perspective only? When your performance is on par with others, why is your immediate superior so intent upon terminating your services? Is there no system of review of Performance Appraisal by the immediate superior in your bank before openly asking you to resign on the basis of poor/non-performance? Better, think about the suggestions offered by Mr. Nathrao.

Sometimes time is of the essence when taking appropriate action instead of introspecting oneself or requesting higher management to change their perspectives. Here, he has been issued a No.1 rating, and both his superior and HR have confirmed their decision. Should we suggest that he take to the road and then engage in a legal battle? As a confirmed employee, he can secure an interim injunction due to false charges, instead of merely knocking at deaf ears.

Thanks,
Sushil

Dear Mr. Sushil,

The rating of 1 may be the lowest on the scale. I do not think he is the number one ranking. The idea is to avoid a legal fight if possible. The last resort is all those good points - labour commissioner, no chargesheet, etc. can come into play at that time.

Since the order has been passed giving a No. 1 rating by the employer, and unless it is immediately set aside through a legal forum, its fallout is evident. It would have been different if no such order was passed and only threats were given. But here, the wrong order should be challenged while in service; otherwise, when out of employment, it becomes very difficult to meet litigation expenses. Additionally, once the employer is awarded an order of unfair labor practice, it will not recur because harsher penal provisions are then in place.

Thanks,
Sushil

Guidelines for Handling Workplace Escalations

Every organization has certain guidelines and work ethics. Follow the Escalation Matrix. The first thing to do is make a note of your performance vis-a-vis your colleagues. When you are escalating, mention the same. Any awards or appreciations, mention them. Throughout your email, you should speak highly of the organization and your wish to continue. Please be careful to avoid any direct allegations until you can prove them.

As you are in the limelight, kindly ensure basic discipline so it cannot go against you, such as reaching the office on time, avoiding any gossip, etc. Maintain a low profile. The labor court should be the last option if I may @ Sushilkluthra. Just a viewpoint, nothing personal. Kindly correct me if I am wrong because if you are planning to continue working, this can go against you. Hence, be very careful. Banking is a close-knit industry; this information can travel, and you may encounter issues in the future. Stay positive, put in extra effort, and ensure to excel. Don't give any reason whatsoever.

We wish you all the good luck and connect for any help you require.

Regards

I fully agree that in good companies and banks, an escalation matrix is available. Even in the government sector, without making representation, even CAT does not entertain OA except in cases of termination or dismissal. This matrix should be followed for all reliefs like promotion, increment, transfer, but in the case of pending termination, one cannot wait. In the case of Zenit Metplast Pvt. Ltd v State of Maharashtra, the Apex court observed in para 32 that the delay in approaching the court is a good ground for the refusal of interim relief. Moreover, if the queriest is going to speak highly of his superiors in the first instance, he will be contradicting his later plea of unfair labor practice before the court. All angles of opinion from everyone are welcome. Our approach is to lay down the best possible option; the rest is for the queriest to decide.

Thanks, Sushil

"Moreover, here, if the queriest is going to speak highly of his superiors in the first instance, he will be contradicting his later plea of unfair labor practice before the court."

Absolutely a valid point. One has to see things from all angles. He has been given a rating of 1 in performance. This needs to be contested as a priority. Does this low rating match reality, or is it a clouded perception of the officer giving the rating? Escalate it in the laid-down manner. Reserve your right for legal remedy for the last.

In the absence of any clue as to whether the questioner is entitled to any sort of remedy under the Industrial Disputes Act, I think that it is not proper to suggest any direct legal action before exhausting the appeal provisions. Even otherwise, if the questioner happens to be an officer, no prudent management will have such a brutal and open clause in the contract of employment envisaging resignation in the face of alleged poor performance. Besides, the statement "In April this year my supervisor called me for a review and informed me to resign due to my poor performance, and if not resigned, he would terminate me... just today I got a rating of 1 which says I have to resign within one month after accepting the same" seems a bit confusing and contradicting to me, compelling to presume that the questioner is under severe mental strain due to the fear of losing the job. So, my suggestion at this stage again would be to prefer an appeal.

As suggested by your HR, please look for other openings in different departments/branches within the organization. This will help bypass issues with performance, your current supervisor, or the risk of losing your job. You can use the superboss reference to secure a new opportunity. While this may slow down your career path, it won't create a gap or halt your progress. By the time of your next review in the new department, consider looking for better opportunities outside of this bank.

It would be unproductive to try to correct or change your current superior's opinions about you. Rather than wasting your energy on a losing battle, consider the advice: "Don't try to change the boss; change the boss."

In private organizations, a confirmed employee can be terminated for non-performance, particularly if formal periodic (even annual) reviews have highlighted performance issues. Even if your immediate superior is targeting you (as you mentioned), it's unlikely they would maintain negative review records without justifiable proof.

This bank appears considerate by requesting your resignation and providing a month's notice. They could have terminated your employment, forcing you to contest their decision. Consider the situation positively, as they are offering an extra month's pay to support your transition.

Accepting performance issues can be challenging. However, sometimes it's a matter of mismatched expectations or not fully grasping unwritten responsibilities. Instead of viewing criticism negatively, consider how you can improve and overcome career challenges in the future.

Best of luck.

Regards, Amod Bobade.

One point I missed in the above post...

If you do try to transfer within the bank to a different department/branch, try/request to make it a "transfer", and not the "resignation + reemployment". This will resolve unnecessary complications related to PF, experience certificates, etc.

Who knows, with a transfer, you may even get a little raise in your pay.

Best Regards, Amod Bobade.

Doubts Regarding Workman Status and Performance Appraisal

Doubts have been cast about whether the querist is a workman or not, and ancillary to this is whether, having given the performance appraisal, he becomes an officer and ceases to be a workman, especially when his supervisor had apprised him of a review.

In April, his supervisor apprised him of poor performance and asked him to resign. Yesterday, he received a rating of 1, which implies he has to resign. Thus, under the latest development, he has been directed to resign. The question of looking elsewhere in the bank does not arise. When the bank has given him a poor performance rating, it is evidently with the approval of the competent authority. A poor performer will not be accommodated elsewhere in the bank. Moreover, in a private bank, appeal provisions are not statutory in nature. The querist asserts that his performance has been on par with his colleagues, and he believes that he has been personally targeted by his superior. Prima facie, it is a case of mala fides against his superior, and his performance appraisal has been falsified by his superior. His right to pursue a remedy lies under The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, as his place of work is in Pune.

The querist is a workman as he was working under a supervisor, and merely because he gave a performance appraisal does not put him in a managerial position, in view of the following Kolkata HC decision. Even if his designation is "Officer," it is not material for determining whether he is a workman:

Kolkata High Court (Appellate Side) Decision

Esab India Limited vs. Swapan Kumar Chakraborty & Ors on 16 January 2014

“This Court can proceed to decide an issue of whether the private respondent can be brought within the purview of 'Workman' under the said Act based on the nature of the duties assigned either by the management or under the aforesaid Rules.

The petitioner has relied upon the statements made in the evidence relating to the nature of duties performed by the private respondent. The entire tenet of the evidence does not really support the case of the petitioner, wherefrom it can be culled out that the very nature of duties entrusted upon the petitioner as a Welfare Officer was supervisory in nature; rather, it is impeachable evidence, which suggests that the private respondent was not bestowed with any independent power to make decisions but, in fact, works as per the direction of the management.

As already indicated, sub-rule 3 of Rule 9 does not confer any power on the Welfare Officer to deal with any disciplinary case against the worker, and therefore, the Welfare Officer cannot take any action against the worker relating to his dismissal, discharge, termination, and/or penal action.

The foundation of the entire arguments of the petitioner is based upon the appraisal form submitted by the private respondent. There is no dispute that the petitioner has submitted the performance appraisal form relating to the management staff. In the evidence, the petitioner admits to having submitted such a form bearing a signature but denies having incorporated the particulars in his own handwriting.

From the aforesaid deposition, it is evident that there is no denial of the execution of the said performance appraisal form as well as its contents, but what has been denied is that those contents were not in his own handwriting. If the execution of the document and the contents thereof have not been denied, the said document is, in effect, accepted and can be applied, and its impact on the issues in holding the proceedings can be considered by the Court.

According to the petitioner, the execution of the said performance appraisal form and contents of the document being admitted, which apparently suggests that it is required to be submitted by a management staff, leads to an inevitable conclusion that the private respondent was employed in a supervisory capacity and discharges his functions mainly of a managerial nature.

As I have already indicated, mere nomenclature is not the sole factor to decide the status of a person, but the very nature of the duties and functions discharged is the other guiding factor. The Tribunal found that the private respondent was performing a duty to advise the factory management and to assist the said management relating to the various facilities and problems of the laborers. The Tribunal further held that since the private respondent has no power to take any penal or disciplinary action against the workers, that itself shows the perennial nature of his duties as a workman as opposed to supervisory.”

Since the querist is working in Pune and being a workman, he derives the benefit of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

Procedure Under Section 28 for Dealing with Unfair Labour Practices

Under Section 28, there is a prescribed procedure to deal with unfair labor practices. The complaint has to be filed within 90 days of the occurrence of unfair labor practice. The detailed procedure is extracted below. Thus, interim relief of stay of termination has to be obtained by the querist under Section 30(2) of this Act.

28. PROCEDURE FOR DEALING WITH COMPLAINTS RELATING TO UNFAIR LABOUR PRACTICES.

(1) Where any person has engaged in or is engaging in any unfair labor practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labor practice, file a complaint before the Court competent to deal with such a complaint either under section 5, or as the case may be, under section 7, of this Act:

Provided that the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence if good and sufficient reasons are shown by the complainant for the late filing of the complaint.

(2) The Court shall take a decision on every such complaint as far as possible within a period of six months from the date of receipt of the complaint.

(3) On receipt of a complaint under sub-section (1), the Court may, if it considers necessary, first cause an investigation into the said complaint to be made by the Investigating Officer and direct that a report in the matter may be submitted by him to the Court within the period specified in the direction.

(4) While investigating any such complaint, the Investigating Officer may visit the undertaking where the practice alleged is said to have occurred and make such inquiries as he considers necessary. He may also make efforts to promote the settlement of the complaint.

(5) The Investigating Officer shall, after investigating the complaint under sub-section (4), submit his report to the Court within the time specified by it, setting out the full facts and circumstances of the case and the efforts made by him in settling the complaint. The Court shall, on demand and on payment of such fee as may be prescribed by rules, supply a copy of the report to the complainant and the person complained against.

(6) If, on receipt of the report of the Investigating Officer, the Court finds that the complaint has not been settled satisfactorily, and that the facts and circumstances of the case require that the matter should be further considered by it, the Court shall proceed to consider it and give its decision.

(7) The decision of the Court, which shall be in writing, shall be in the form of an order. The order of the Court shall be final and shall not be called into question in any civil or criminal court.

(8) The Court shall cause its order to be published in such manner as may be prescribed. The order of the Court shall become enforceable from the date specified in the order.

(9) The Court shall forward a copy of its order to the State Government and such officers of the State Government as may be prescribed.”

The querist should be thankful to the management that one month’s notice has been given to him to challenge its decision before a legal forum and obtain a stay before they terminate him if he really thinks that injustice has been done to him. I think the querist should come forward with details of the duties he performs.

Thanks

Regards

Understanding Performance-Related Termination

In today's scenario, people do get fired for performance issues.

- Avoid being emotional. Don't take the job as a lifetime guarantee. I am sure your employment contract would cover you getting fired for performance issues. I doubt if you can go to court to force the bank to keep you employed even if the appraisal system rates you lowest at 1.

- Talk to HR to understand what specific performance points you faltered on. Think honestly for yourself which of these areas you can improve upon by learning a new skill or changing behavior.

- When you say your performance was the same as your peers, it unfortunately carries little weight because you are the person in the dock. The appraisal system says your performance was bad, and the easiest defense for you is to deny it. Saying this will not convince many people.

Reflect and Improve

The best strategy would be to reflect and see if there really was a problem. Why did they rate you low? What were the expectations that you did not meet? What skills could have led you to meet those expectations? What attitudes would have helped you meet them? Ask your HR to help you understand.

Bad things happen. Mistakes happen too. It is important to understand the reasons and ensure it doesn't get repeated.

Dear All Seniors,

Thank you all for the feedback provided by each and every one of you. I appreciate your guidance on my concern. Currently, I have escalated the matter to HR and seniors in the management and have emailed them the facts and figures, along with the list of achievements. I have refused to accept my performance appraisal as other staff members in my branch have been given a rating of 3. Therefore, I believe it is completely unjustified to give me a rating of 1.

Furthermore, our organization has a Performance Improvement Plan where if a staff member's performance is not satisfactory, an extension period of 3 months is usually given, which was not followed in my case.

Dear Mr. Rao,

Please find enclosed the reply:

- Has a periodic review been done of your performance? No.
- What was the rating in the earlier review? Last year, I received a rating of 3, with 5 being the highest.
- Has any warning or indication been given in normal day-to-day dealings that your work is not satisfactory? An indication has been given that my work was not satisfactory, but no official mail or letter was sent regarding the same.

Once again, I request all my seniors to guide me in this matter.

Regards,
Nirmal

This feedback gives you grounds to fight. No warnings, sudden lowering of rating. No periodic reviews. Collate these points in your case to higher management.

Dear Aamudda & Seniors,

Thanks a ton for all your guidance. In true sense, it has given me a lot of confidence within myself to fight till the highest authorities. My issues have been sorted out and resolved to the best of my satisfaction.

Regards,

Nirmal Menon

Understanding Employee Rights Under the Conferment of Permanent Status Act 1981

Now let's see the problem that a person who worked more than 480 days or so, as per the Conferment of Permanent Status Act 1981 (a workman who has put in 480 days of continuous service in 24 months, will automatically become a permanent employee under the employer), is a permanent employee. Hence, he is entitled to get a remedy under the ID Act.

Moreover, under the ID Act, Section 52, "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment be express or implied. For the purposes of any proceeding under this Act in relation to an industrial dispute, it includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute. However, it does not include any such person:

(i) Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) Who is employed in the police service or as an officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

So my advice is not to resign from your job. If your management wants to terminate you, don't worry. Challenge them in court and get a remedy, because non-performance of work can't be the legal provision to terminate the employee after 480 days.

Regards,
L.K. Saravanan