Facing Unfair Dismissal in HR: How Can We Tackle Unethical Practices Together?

Hi, I have a total of 8 years of experience in an HR Generalist role and am currently working with a healthcare company as Regional Manager HR. I joined this organization 4 months ago and am currently responsible for HR in two different states. Suddenly, I was asked to leave with one month's notice, citing that I am not performing as per management's expectations. Since joining, I have not been given a proper job description, and the organization has no valid proof to label me as a non-performer.

I am not the only employee going through this situation; many others have also been asked to leave, being deemed as non-performers. I am unsure how to respond to this and seek suggestions on whether we can prevent such unethical practices.

Please guide me on how to handle this situation so that organizations engaging in such actions refrain from jeopardizing individuals' careers.

Warm Regards

At the outset, let me tell you that I sympathize with your predicament. However, I am rather surprised that a person with 8 years of experience in HR accepted a job without a job description. I would have thought that you would have prepared your own job description after a month of joining and got it approved by the management.

Kindly provide us with more information about the age and size of the organization, etc.

While feeling sorry for the predicament you are facing, I have some queries:

"What steps did you take to appraise the management about the lack of job clarity, overlapping, definition, or content? What valid proof of achievement do you have, like introducing some positive changes in the HR system?"

When other people were asked to quit based on non-performance, what was your input towards management's decision on termination?

Did you communicate with your management about these hurried terminations without a real cause or sufficient cause?

At which level was the decision to give you notice taken?

Are there other people in higher positions to whom you can present your case of a lack of natural justice?

No warnings, no noticeable failures from your side.

There is no real actionable remedy in such situations.

The legal way may not help promptly as civil cases take their own time to conclude.

Please speak to the highest management you can access and request them to reconsider, bring out the problems, and explain how you tried to improve things.

That is the best course of action, in my opinion.

Legal Framework for Termination in Andhra Pradesh

Your place of work seems to be in Andhra Pradesh and is thus governed by the Andhra Pradesh Shops and Establishment Act, 1988, and the Rules of 1990 framed thereunder. As you mentioned, the management is terminating various employees for non-performance. The remedy, if any, may be as follows:

Employee Rights During Probation and Confirmation

Coming to the merits, an employee, even during probation, cannot be arbitrarily dismissed. Some memorandums or letters should be issued by management to achieve the targets set out. In the case of confirmed employees being dismissed on allegations of non-performance without a charge sheet, this is not valid. Under Rule 20 of the Rules of 1990, no employee shall be terminated for misconduct without conducting an inquiry as prescribed under the rule. For a confirmed employee, at least, the said rule bars the employer from terminating without an inquiry. But in your case also, the rule may be said to be applicable because the rule states, "no employee shall be terminated...." Thus, filing the first appeal under Rule 21 before the first appellate authority may be exercised. If your termination letter prima facie shows any stigmatic language, it is covered under Rule 20. Mind it, there is a limitation period prescribed therein. If the management does not pay heed to you quickly, then resort to it.

Thanks

Sushil

Legal Precedents on Employment Termination

In continuation of the above, it may be pointed out that the Andhra High Court held in V. Gopalakrishnaiah vs District Co-Operative Central... on 10 September 1998 that Section 47 of the AP Act of 1988, which deals with the conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement, etc., and payment of subsistence allowance for the period of suspension, entitles an employee to remain in service up to the superannuation age of 60 years.

Section 47 of the Act, 1988

Section 47 of the Act, 1988 deals with the conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement, etc., and payment of subsistence allowance for the period of suspension. Section 47(3) of the Act, 1988 reads as follows:

(3) Every employee who has put in continuous service of not less than one year shall be eligible for service compensation amounting to fifteen days' average wages for each year of continuous employment, (i) on voluntary cessation of his work after completion of 60 years of age; (ii) on his resignation, or (iii) on physical or mental infirmity duly certified by a Registered Medical Practitioner, or (iv) on his death or disablement due to accident or disease:

Provided that the completion of continuous service of one year shall not be necessary where the termination of the employment of an employee is due to death or disablement;

Provided further that in the case of death of an employee, service compensation payable to him shall be paid to his nominee, or if no nomination has been made, to his legal heir.

Earlier Judgment: KODANDAM VS. WANAPARTHY CO-OPERATIVE MARK SOCIETY

In an earlier judgment of the HC in the case of KODANDAM VS. WANAPARTHY CO-OPERATIVE MARK SOCIETY, LAWS(APH)-1981-3-20, High Court Of Andhra Pradesh, Decided on March 19, 1981, it was held in respect of the 1966 Act:

"It may, at this stage, be stated that if the provisions of the Andhra Pradesh Shops and Establishments Act, 1966, apply to the petitioners, Section 40 of that Act prohibits the termination of the services of any employee except in accordance with the conditions laid down therein. Section 40 of the Andhra Pradesh Shops and Establishments Act, 1966 reads as follows: "40. Conditions for terminating the services of an employee and payment of gratuity: (1) No employer shall, without reasonable cause and except for misconduct, terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month's notice in writing or wages in lieu thereof, and in respect of an employee who has been in his employment continuously for a period of not less than five years, a gratuity amounting to fifteen days' average wages for each year of continuous employment. Explanation: For the purpose of this subsection, (a) the expression 'wages' does not include overtime wages; (b) the expression 'average wages' means the daily average of wages for the days an employee actually worked during the thirty days immediately preceding the date of termination of service; (c) an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee; (d) where the total continuous employment is for a fraction of a year or extends over a fraction of a year in addition to one or more completed years of continuous employment, such fraction, if it is not less than a half-year, shall be counted as a year of continuous employment in calculating the total number of years for which the gratuity is to be given. (2) Where a gratuity is payable under subsection (1) to an employee, he shall be entitled to receive his wages from the date of termination of his service until the date on which the gratuity so payable is actually paid, subject to a maximum of wages for two months. (3) An employee who has completed the age of sixty years or who is physically or mentally unfit having been so declared by a medical certificate, or who wants to retire on medical grounds or to resign from his service, may give up his employment after giving his employer notice of at least one month in the case of an employee of sixty years of age, and fifteen days in any other case; and every such employee and the dependent of an employee who dies while in service shall be entitled to receive a gratuity as provided in subsection (1). He shall be entitled to receive the wages from the date of giving up the employment until the date on which the gratuity so payable is actually paid, subject to a maximum of wages for two months. (4) The services of an employee shall not be terminated for misconduct except for such acts or omissions and in such a manner as may be prescribed. Explanation: For the purpose of this section, the term 'employee' shall include part-time employees also." The petitioners admittedly have been in employment for a continuous period of not less than six months. They have not been given at least one month's notice in writing or wages in lieu thereof, nor have they been paid gratuity amounting to fifteen days' average wages for each year of continuous employment as laid down in Section 40 of the Act. There can be little doubt that if Section 40 of the Act applies, the orders of termination impugned in this writ petition must be quashed.

Similarly, in the Explanation clause of Section 47 of the 1988 Act, an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee. It appears that the query has rendered more than 4 months of service and thus shall be deemed to have been in continuous service of not less than six months. He is entitled to continue in service until the superannuation age of 60 years. He could have been terminated only after conducting an inquiry as per rule 20 of the 1990 rules.

Thanks

Regards

Dear Govind,

As a Manager, you do not have any course of action to fight against Management except through a civil case, which might take a longer time to resolve. As you said, there are others too who have been asked to leave. Please check if one of those terminated employees falls within the 'workmen' category. If yes, you can use him to file a case in the labor court.

Regards,
Murali

Dear Govind,

Greetings of the day!

Please review your offer letter carefully. It always states that if the company is not satisfied with your performance, they can terminate you with a notice period salary or inform you within 1 month or 2 months, as mentioned in the letter.

Thank you.