On the spot termination during probation - Was the company supposed to give notice? What severance pay I am eligible for?

Company Name: MNC Bangalore

Date of Joining: 26th May 2020

Date of Termination: 23rd October 2020

Job Title: Accountant (CA)

Hello Sir,

I am a woman. I joined MNC on 26th May 2020. I was the only female among 11 males. My manager was the harassing type, seeking extra attention or generally incompetent. He spoiled the work environment, and 2-3 men verbally misbehaved with me in meetings. I filed a complaint. The manager instructed me to stop working in mid-August. Subsequently, HR asked me to resume work. The manager's behavior turned erratic, assigning me double and triple workloads. Daily, he would harass, insult me endlessly, engage in fault-finding, claim completed work as unfinished, and continue with the harassment. I requested HR to assign me to a different team. Later, on 7th October 2020, I sent an email complaint about the manager. I was on medical leave from 14th to 20th October. On 21st October, HR and the CFO harassed and insulted me, demanding my immediate resignation. I refused. On the 22nd, my company network access was blocked, and on the 23rd, I received a termination email.

Following that, the entire company became unresponsive.

A labor office complaint was filed on 27th October 2020.

During the first hearing on 10th November 2020, the company requested time to respond.

In the second hearing on 20th November 2020, the company presented a file of objections.

During the third hearing on 8th December 2020, I responded to the objections, which I had initially sent on 22nd November 2020 as well. The labor officer mentioned a failure of reconciliation, and the case is to proceed to court.

On 8th December 2020, I lodged a police complaint for the salary due from October 23rd, which I received yesterday morning.

I endured immense mental agony, torture, and helplessness.

The company is registered in Delhi, and I was stationed at the Bangalore office.

Was the company required to issue a notice?

What severance pay am I entitled to?

Dear Anu2020,

You have explained in sequence what had happened with you. Your query is, "Was your company supposed to give you the notice?" To give a reply to this query, we need to know the duration of your probation and, above all, the terms of separation mentioned in your appointment letter. Without this information, no further comments can be given.

Thanks,
Dinesh Divekar

Appointment letter says no notice required during probation. What is the legal stand on this? I do have all email and message copies which I submitted to the labor department and company. I also filed a complaint with Mahila Aayog on 25.11.20, but the letter for its inquiry is pending as the signatory is on tour.

Is the following possible?
- Clean relieving letter
- Severance pay
- Salary from 23rd October to the current date.

Where does the law stand on this? Can one be harassed or terminated for filing a complaint against a manager in a large organization?

Had you also filed a complaint under the POSH Act of 2013 before the Internal Complaints Committee of the employer? If yes, then you have a good case before the Labour Court.

- S. K. Mittal
9319956443

Dear Madam,

It is unfortunate what you have gone through during your time working with the MNC. Your sudden and abrupt termination without stating reasons and without giving you a reasonable opportunity is, prima facie, illegal. You have already sought redress through the appropriate legal channels. I hope, under the guidance of a competent labor consultant, you have built a strong case.

In addition to legal avenues, you have approached the Mahila Aayog and filed a police complaint. Furthermore, please file a complaint under the POSH Act (Sexual harassment at the workplace law) with the internal committee of the company. These actions will continue to mount pressure on the company and will, hopefully, lead to an amicable settlement in due course.

Regards, Vinayak Nagarkar HR and Employee Relations Consultant

Dear colleagues,

A probationary employee can only be terminated through a non-stigmatic order. Our lady friend has to establish and prove that her termination was stigmatic. This can be possible by hiring a good lawyer. Our friend can even succeed in this. However, my question is, what will she achieve by going through all this?

I would rather advise our friend to forget and forgive everything. The due salary has also been paid by her employer. It's time to start a new journey elsewhere.

Wishing her good luck.

Dear Anu,

You have filed a complaint under POSH Act 2013 before the Internal Complaints Committee of the Employer. If the internal committee is not part of your organization, you can also file a complaint with the District Officer/Nodal Officer in your district.

I incurred unemployment loss and such harassment due to this company's HR, ethics person, CFO, and manager. They spoiled my career and put me in trouble. From 24.10 to today amounts to 2 months' salary, which is a significant sum, and I still don't know when I will get a new job.

I feel bad; it's not just about the monetary loss, but the fact that all of this was done by these individuals from the company is gross callousness. Can I file a criminal complaint against those 5-6 people who have caused immense mental and financial strain on me, without even sparing me during a significant medical emergency?

I need my money, a clean relieving letter, and peace of mind. Can I complain to the police that the manager, CFO, and HR harassed me when I tried to file a complaint and then terminated me, leaving without notice, even withholding 23 days' salary? I had to go to the police station six times, which made me feel terrible; I ended up crying many times unnecessarily due to all of this. Can I file a police complaint?

Dear Madam,

It appears you are fighting your battle on several fronts. You now wish to open one more by exploring filing a police complaint. We understand the predicament you are in but suggest handling the situation calmly considering all implications. You also have to have patience as third-party interventions take time for results to kick in.

As regards filing a police complaint, you need to consult a good competent lawyer well-versed in sexual harassment matters in your locality and move forward with his advice.

Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

If the letter terminating is silent about reasons for termination, then the order will stand because it is not a stigmatic order. At the same time, if the order has specified some reasons for termination, then it would be a stigmatic order, and you should have been given an opportunity to prove the charges.

If the appointment order says that "during probation your services shall be terminated without notice and reasons," then you cannot challenge your termination by saying that you were not given notice nor were given any opportunity to show cause for termination.

A Chartered Accountant is not a worker, and I am afraid, why didn't the company challenge it before the Labour Officer and Labour Court.

Certainly, you could have taken action against those employees who have harassed you following the provisions of the POSH Act.

I have photos and prints of complaints I gave against those employees. I was terminated in retaliation.

At present, what can I do?

Complaints mean complaints made following which Act? If the establishment did not have a Committee mandated by law to prevent harassment against women in the workplace, you can take action against the company for that. If your issue is not harassment but termination, then the court is there to intervene and ensure your dues are paid or reinstate you. However, if you have been working in a supervisory role, you cannot receive protection under the Industrial Disputes Act - thus, it is meaningless to go to court and battle against the company, especially if you were under probation. Termination as retaliation cannot be proven in court. Before the court, the only questions will be:

1. Was the employee under probation?

2. Whether there is a clause that permits the employer to terminate the employee on probation without notice and reasons?

3. Whether the order terminating the employee contains any reason for termination? If yes, is it stigmatic?

In this circumstance, strictly adhering to the law may not be practical, but you can explore other options by approaching the District Collector or such other agency responsible for ensuring the implementation of the POSH Act, etc.

I called the DM office, and they told me to file a complaint with the local police.

I called the DM office, and they told me to file a complaint at the local police station first and let the police take action.

Madam Anu2020,
Bangalore,

You need to hire a good lawyer and take action under his direction.

In the USA, there is the EEOC, which takes care of retaliation absurdity by employers. What about in Bangalore? It's been 2 months without pay. I got my October pay with the help of cops. I met the DCP and filed a complaint on Saturday. He will forward that to the local PS. The complaint with the Women's Commission is still pending enquiry as the chairperson is on an official tour. The Labor Commission was of no help and was just a waste of time and sorrow.

KSLSA had taken a letter last Tuesday, 15.12.20, to get my case file from the labor commissioner. The DCP complaint was filed on 19.12.20. I sent an email to the USA EEOC, but I will probably not be covered as I am not a USA citizen, even though the company is based in the US. Who can provide immediate relief and peace in this case?

Dear Anu,

Only the POSH Act of 2013 can help you in your case. I am enclosing the POSH Act for your reference.

The case is fit to be heard under the POSH Act. Please file a complaint immediately with the District Authority (Collector's office) regarding the non-availability of the Internal Complaint Committee under the POSH Act and also for not filing the Annual Return under the POSH Act. If the District Authority becomes active, the company will learn a lesson in respecting female employees. The reinstatement issue is not primary; sexual harassment is primary. Concentrate on the POSH Act, which will be more beneficial in this case.