How to Handle Legal Claims and Experience Letters for Underperforming Employees?

Employee Experience and Relieving Letter Issue

We had an employee working as a coder for a year with poor performance. He resigned a month ago and has been requesting his Experience & Relieving letter along with his last month's salary. These are genuine requests and rightfully what he deserves. However, due to a few weeks' delay on our part in providing these, he has filed a legal case against the company with false allegations of daily overtime for the past year. He is now asking for compensation, which amounts to lakhs.

Apparently, he can't prove the overtime, so we are not legally concerned about any damage. However, on a personal note, I would like to include unsatisfactory comments in the experience letter. Any suggestions?

By giving unsatisfactory comments in an experience letter will be a gain to the company? If not, then refrain from that. It will be assumed that you have given unsatisfactory comments to teach the employee a lesson or for ego satisfaction. If we cannot help an employee, then we should not spoil their career too. This does not mean that the employee has done great work; the company should give a befitting reply, as per my view.

You can issue a simple service certificate indicating only the individual's length of service without providing any commentary on their performance.

B. Saikumar, HR & Labour Law Advisor, Navi Mumbai

The issue has been blown out of proportion from both sides. By the way, are you from HR or are you the owner of the company?

Performance of every employee cannot be the same. Some are smart, and some are laggards. Against this backdrop, for the underperformance of one of the employees, you have removed him. Can there be any more severe punishment than termination of services? But then it appears that you have been vindictive. By doing this, the collateral damage is your current predicament.

Have you received summons from the court? Before receiving the summons, did you receive notice from the lawyer, or has the petition been filed without giving notice? If you had received the notice, then why did you not call the employee and clear the dues?

Well, gentleman, cases in court are not fought by taking a high moral stand. False allegations are a norm in all types of cases, and labor cases are no exception.

If you have received summons from the court, then when the very first hearing takes place, ask for referring the case for mediation. Before doing this, call the employee and work out a suitable deal. Naturally, this will cost more, but instead of full-fledged litigation, the cost will be less. You have given an invitation to trouble. In Hindi, it is called "अपना गला फुलाना", whose English equivalent is "to stick one's chin out."

Case Analysis from a Management Science Perspective

When was the employee recruited? If it was in the recent past, then is it a recruitment failure? Who was involved in the recruitment of the employee? Have you taken action against them? Why was his performance subnormal? Did you investigate the causes? What kind of support did his HOD give to improve performance? Who gave him motivational support?

The second failure is communication with the employee. Occasionally, there could be a delay in settling the dues. Were you in constant touch with the employee, and moreover, how was this delay communicated?

The next failure is improper separation from the company. Why was there a delay? Who was responsible? Is it a system failure, or is there a system, but people failed the system? If the latter, what action will you take for the unreasonable delay?

Now you say that you wanted to give negative remarks in the experience letter. In spite of receiving the court's summons, if fiendishness within you pops out, if wisdom has not prevailed upon you, then God bless you, gentleman!

Thanks,

Dinesh Divekar

P.S.: Possibly, my post could be strongly worded. However, it is more about the unprofessional handling of the entire sequence of events. Therefore, please do not take it personally.

You have received advice from many of our learned friends here and probably have found a solution to your problems by now. I won't make a fresh venture to load you with more advice but would like to explore other aspects that might have caused problems for you.

If 20% of what causes poor performance is attributed to an employee, 80% of it is due to poor staff administration and a lack of guidance and supervision from the organization. I hope everyone here would agree that an employee is selected against a vacancy after many rounds of interviews and confirmation that their intelligence, attitude, and job knowledge are just right for the position they are appointed to. Additionally, all employees strive hard to establish themselves in the organization hierarchy and are not expected to falter when put to work.

Certainly, there should be some effort from the employer for "job fitment" of a newly recruited employee that initially helps a fresher to adopt departmental procedures and mainstream work methodology. Proper supervision and guidance are the other two factors that shape up an employee to meet "departmental expectations."

I won't doubt for a moment the intentions of the employee who you say has filed a legal case against your company. I am rather sure that the individual was pushed to initiate legal proceedings due to "organizational misbehavior" that took away valuable "career time" from them.

I suggest a procedure be initiated to identify such organizational shortcomings to ensure no repetition of a similar case in the future.

Regards,

I will disagree with the members who have given their opinion. Assuming you are correct in stating that the delay was by a few weeks and the employee in question has filed a case with false complaints, then you should not give him an experience letter until the case is resolved or withdrawn. You are required by law to give him an experience letter, and you can make a combined relieving and experience letter. You are fully within your rights to state in it that the employee's performance was unsatisfactory. Nothing in the law prevents you from doing it unless it's a false statement amounting to defamation. Keep a note in the file that when anyone calls for background verification, let them know the employee had filed a false case against the company that was dismissed by the court.

I agree with Mr. Saswata Banerjee, stating that:

I will disagree with the members who have given their opinion. Assuming you are correct in stating that the delay was by a few weeks, and the employee in question has filed a case with false complaints, then you should not give him an experience letter until the case is resolved or withdrawn. You are required by law to give him an experience letter, and you can make a combined relieving and experience letter. You are fully within your rights to state in it that the employee's performance was unsatisfactory. Nothing in the law prevents you from doing it unless it's a false statement amounting to defamation.

Keep a note in the file that when anyone calls for background verification, let them know the employee had filed a false case against the company that was dismissed by the court.

Dear Mr. Banerjee,

If you have gone through the poster's remark which is, "I, on a personal note, would like to give unsatisfactory comments in the experience letter," wherein it shows that the poster would like to teach him a lesson for filing the case legally, which means the poster has taken the issue personally rather than professionally. We should give a befitting reply to the employee if the need arises and if the employee is at fault rather than giving false remarks just to satisfy one's ego.

Ok, let me clarify/correct my post. I didn't say to put a false statement on the relieving letter. The poster said his work was unsatisfactory, so that can be reflected in his experience certificate. Also, the fact that he had filed a false case against the company could be mentioned as well. Neither of those statements would be false IF THE ORIGINAL POSTER WAS STATING THE TRUTH.

The poster stated in his query that the employee was a poor performer. In that scenario, what action has been initiated by the employer/poster, such as counseling, training, or warning, which is not mentioned by the poster?

Now, when the employee has resigned, he deserves (even the poster also agrees) his experience/relieving letter, which was not given to him. In frustration, after a month (maybe after due follow-ups), he has sent a legal notice with all the strong points (which may be false) to the employer so that he can have a legal stand on his demand for his experience/relieving letter.

Since the employer has not taken any initiative in correcting the poor performance during the employee's tenure, it is worthwhile to note. At the end, when the employee has moved legally for what he deserves, the poster wants to spoil the career of the said employee, which is hurtful. That's all my view states.

Regards

Handling Legal Disputes with Employees

In this case, my view is that if the employee in question pursues legal action, then the case should be handled within legal limits. As an HR professional, I personally believe that an amicable exit for the employee, along with a clear and respectful release provided by the employer, is beneficial for both parties. Such a resolution sends positive signals in favor of the company and the employee.

It is essential for HR to take on the responsibility of ensuring correct hiring practices, proper induction, training, long-term retention, performance evaluation, talent development, and more. All these aspects should be supported by management through established processes, procedures, and documentation. An employee usually resorts to legal action only if they feel provoked, instigated, or harassed to a significant extent.

In conclusion, in today's fast-paced world where time is valuable, companies cannot afford to waste time on legal disputes and unproductive activities. Therefore, the best approach is to find an amicable and respectful resolution to such issues in the shortest possible time.

Agreeing with Bijoy, the case needs to be handled from an HR perspective rather than a legal perspective, considering the minor nature of the issue and trying to arrive at a win-win situation. The judgment made by the poster that he is a poor performer is open to question since the other party is not heard, and there may be factors like biased supervisors, poor feedback to the employee, or poor training, etc., which might contribute to poor performance. Similarly, the poster's statement that the allegations made by the employee about overtime (OT) are false is also unilateral. He may be true or false, but the statement is open to question again. It may also raise a doubt whether the management wants to counter his OT claims by labeling him as a poor performer and then terminating him to avoid further claims.

The management has already taken action for his poor performance by terminating him, which itself can be open to question by the employee if he feels such termination is unjustified. If the employee is not satisfied with his performance, he has accepted his termination, and all he wants is an experience certificate. To have a win-win situation, it is fair that an employee who worked in a company deserves an experience certificate. If the management does not want to say that his performance is unsatisfactory, it need not, but then can issue a simple service certificate stating that the employee worked in the company from... to... and handled the job of... and was relieved on so and so date. That may settle the issue.

As HR professionals, one should make the severances/separations smooth and peaceful in the interest of employer branding, as reputations reach the market faster than light in technology-driven communications. This globe is made smaller by technology, and who knows, we may bump into each other sometime soon, finding, to our surprise, that the so-called poor performer is now a Vice-President in a company since each of us grows in our time zones.

Regards, B. Saikumar

HR & Labour Law Advisor

Navi Mumbai

Sorry, there are two mistakes in the second paragraph.

The sentence "is not satisfied with his performance" shall be omitted, and the sentence "If the management does not want to say that his performance is not satisfactory," shall be read as "If the management does not want to say that his performance is satisfactory."

Thanks,
Saikumar