Hi, I'm working in a private limited company. Recently, I have resigned due to harassment by a supervisor. My Head of Department is also supporting my supervisor and not ready to listen to anything against her. I have also complained to HR about this, and now I am on a two months' notice period.

I need advice on where I can file a complaint now. With no job at hand, my gratuity was due in July 2016, but I had to resign due to regular harassment.

From India, Delhi
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Hi,

Go to your labor commissioner/labor inspector's office and file an oral complaint. If they show interest and are prepared to take action, then submit the complaint in writing. Additionally, if you have completed 4 years and 8 months of service, you are eligible for gratuity; there is no need to wait for the full 5 years to be completed.

Thank you.

From India, Chennai
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Since you have resigned from service, irrespective of any cause, it is deemed that the employer-employee relationship has ceased by your will. As you have tendered your resignation and are serving the notice period, you will not be able to claim "illegal termination" before the Labour Commissioner. You have not described the nature of harassment. You may consider filing an FIR at the police station, but I am afraid you cannot gain much benefit from the point of view of an employee since you have resigned yourself. For more information, check my blog at www.labourlawhub.com.
From India, Kolkata
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There is no illegal termination by the company as I have given my resignation due to regular harassment by my supervisor in the form of bad behavior, lack of guidance in work, responding only with yes or no, and everything depending on her mood. In the past two years, 4-5 people have already resigned. I have been with the company for about 4-5 years, and only last year did my reporting change to her. Since then, I have been facing verbal harassment, mood swings, and responses in yes or no instead of explanations. After one staff member resigned in March, she believes that he did so under my influence, and her behavior has worsened.

I have submitted a complaint along with my resignation to my Head of Department (HOD) with Cc to HR. However, no action has been taken by either the HOD or HR. In fact, they have not even replied to confirm if my resignation has been accepted, whether through email or verbally. I am simply assuming that my last working day will be two months from the date of the resignation email.

Please advise.

From India, Delhi
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As you have mentioned that you have complained about verbal harassment and lack of explanation by your superior, but no action has been taken. In such a case, you cannot do anything more than complain to the HOD. It is the duty of the HOD to investigate your allegations against the lady, conduct an inquiry, and take action against her. However, if the company decides not to do anything, you cannot do much. Moreover, it is difficult to prove verbal harassment and mood swings.

What I suggest is that since you have already tendered your resignation and are serving the notice period, after completing the notice period, collect all legal dues and leave the company without much hassle. If the company refuses to pay your legal dues, then you can seek legal advice.

Let me know if you have more specific questions. Check out my blog at www.labourlawhub.com for more updates.

From India, Kolkata
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Raise your voice in Labour Department, today you are the victim tomorrow somebody else, need to teach them lesson. Approach labour commissioner they will definitely take action.
From India, Hyderabad
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I have not received any confirmation from HR or the Head of Department (HOD) regarding whether my resignation has been accepted, and today marks seven days since I submitted it. Should I assume it has been accepted?

In this case, since I have not received any communication about my resignation, do I still have my employee rights as before, or have my basic employee rights ended since I sent an email for a complaint along with my resignation?

Below is the content I included in my complaint and resignation email.

To: HOD
CC: HR
Subject: Complaint and Resignation

Dear Sir,

I am writing to formally complain about my supervisor's behavior, which affects my mental peace.

I wanted to inform you that Ms. XXX does not treat her team well, does not respond to my problems adequately, and only communicates in 'Yes' or 'No'. She provides no guidance in the work we do and is not interested in developing the skills of the team.

I also feel she believes Max resigned because of my influence, and thus her behavior has worsened.

I have been working here for the last five years and never faced such problems when I was reporting to Mr. YY. For the last one and a half years, since my reporting changed to Ms. XXX, I have never slept peacefully. She always has mood swings and treats me very poorly.

I will not be able to work under her and would like to resign from my job for the reasons mentioned above. I also confirm that I do not have a problem with the company or the job itself.

Regards

From India, Delhi
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Understanding Worker Status Under the Industrial Disputes Act

To establish yourself as a worker under the Industrial Disputes Act, you need to consider the following:

1) Are you working independently, without teams?
2) Do you lack financial or administrative powers?

If you meet these criteria, you can approach the local labor department to raise a grievance. Otherwise, you may need to approach civil courts through appropriate legal counsel.

Gratuity Eligibility and Complaint Process

Regarding your gratuity, if you have completed 240 days for every set of 12 months (calculated from your date of joining), it counts as one year. In the fifth year, if you have completed 240 days, you can lodge a complaint with the local labor authorities.

Regards,
[Username]

From India, Mumbai
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nathrao
3180

Dealing with a Difficult Supervisor

It is very difficult to work happily when an immediate boss is creating hassles and treating subordinates badly. Having read your complaint, proving anything against your immediate supervisor will be difficult unless you have witnesses and other employees also face such problems. Did you try to get yourself changed to another team or project?

Clarifying Resignation Details

Your letter does not specify the date of resignation. Should it be construed as the date you put up your complaint? Gratuity will be due if you have completed 5 years of service and 240 days in the last year. Clearly ask the company to accept your resignation or inform them that the specified date is your last working day. Hand over company property, files, etc., under official signature and documentation of HO/TO.

Seeking HR Assistance

Go to HR and insist on clarity about resignation and dues.

From India, Pune
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In my case, since I have completed 4 years and 10 months (every year completed 240 days), can I claim for gratuity, or do the first five years need to be completed before the 240 days rule will apply? Please advise.
From India, Delhi
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Eligibility for Gratuity

Yes, you are eligible for gratuity. Please go through the information below.

The term ‘continuous service’ is defined under Section 2A of the Act, which is reproduced hereunder (relevant portion):

Section 2A: Continuous Service

For the purposes of this Act:

(1) An employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave, layoff, strike, or a lockout or cessation of work not due to the fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of the Act.

(2) Where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer:

(a) For the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than:

(i) One hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and

(ii) Two hundred and forty days, in any other case.

Hence, when Section 4 (1) of the Act is read with Section 2A of the Act, it is clear that the Act implies 4 years and 240 days is enough to satisfy the requirement of ‘continuous service’ in cases where the service is of less than five years.

From India, Hyderabad
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