Dear Members,
If a worker has been fired without any domestic inquiry due to disciplinary reasons and we settle his full and final payments by transferring the same to his bank account, what happens if that worker joins another establishment? After working for one month, he leaves the company and files a case in the labour court under the ID Act against his previous company, seeking full back wages and reinstatement.
Eligibility for Reinstatement
1) Is he eligible for reinstatement since he had joined another establishment after being fired from the previous company?
Calculation of Full Back Wages
2) What would be the amount to be paid as full back wages? Does it include bonus, leave encashment, gratuity, the employer's share of EPF & ESI?
Denial of Reinstatement in Court
3) Could the company deny reinstatement of the worker in court? What arguments could be made for denying the same, and what are the implications?
Please suggest.
Regards, Mahesh Kumar
From India, Delhi
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21If a worker has been fired without any domestic inquiry due to disciplinary reasons and we settle his full and final payments by transferring the same to his bank account, what happens if that worker joins another establishment? After working for one month, he leaves the company and files a case in the labour court under the ID Act against his previous company, seeking full back wages and reinstatement.
Eligibility for Reinstatement
1) Is he eligible for reinstatement since he had joined another establishment after being fired from the previous company?
Calculation of Full Back Wages
2) What would be the amount to be paid as full back wages? Does it include bonus, leave encashment, gratuity, the employer's share of EPF & ESI?
Denial of Reinstatement in Court
3) Could the company deny reinstatement of the worker in court? What arguments could be made for denying the same, and what are the implications?
Please suggest.
Regards, Mahesh Kumar
From India, Delhi
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Dear Mahesh, please find the response to your question below:
1) Reinstatement depends on the arguments and reasons for termination. Until the reason for termination is clarified, it cannot be answered.
2) An employee will not be entitled to back wages upon his reinstatement when he has neither pleaded nor proved his non-employment. (Labour court judgment: Kendriya Vidyalaya Sangathan vs S C Sharma, 2005 LLR 275 (SC)). Since you mentioned he was working within this duration, he is not entitled to the same.
3) To provide an answer, we need to know the reason for termination.
Thank you.
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1) Reinstatement depends on the arguments and reasons for termination. Until the reason for termination is clarified, it cannot be answered.
2) An employee will not be entitled to back wages upon his reinstatement when he has neither pleaded nor proved his non-employment. (Labour court judgment: Kendriya Vidyalaya Sangathan vs S C Sharma, 2005 LLR 275 (SC)). Since you mentioned he was working within this duration, he is not entitled to the same.
3) To provide an answer, we need to know the reason for termination.
Thank you.
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Dear Manoj,
Thank you for your reply. For further clarification of the query, the reason for termination is given below:
- Refusal to do assigned work by the supervisor, misbehavior with his supervisor, and warning to the supervisor for slapping. After being counseled by management, he refused to feel sorry for the same.
If the worker has pleaded, but the company has proven that the worker was employed for one month after his termination, is he eligible for reinstatement?
Regards,
Mahesh Kumar
From India, Delhi
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Thank you for your reply. For further clarification of the query, the reason for termination is given below:
- Refusal to do assigned work by the supervisor, misbehavior with his supervisor, and warning to the supervisor for slapping. After being counseled by management, he refused to feel sorry for the same.
If the worker has pleaded, but the company has proven that the worker was employed for one month after his termination, is he eligible for reinstatement?
Regards,
Mahesh Kumar
From India, Delhi
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Dear Anonymous,
The worker is entitled to reinstatement prima facie as he was illegally terminated. His unemployment is no harm to him and no help to you. He should be allowed to continue working to earn a living for himself and support his family.
Even if he had remained employed, he still has the right to request reinstatement. If he had continued to work, you would have saved only on back wages.
Warm Regards,
Bharat Gera
HR Consultant
9322404765
From India, Thane
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The worker is entitled to reinstatement prima facie as he was illegally terminated. His unemployment is no harm to him and no help to you. He should be allowed to continue working to earn a living for himself and support his family.
Even if he had remained employed, he still has the right to request reinstatement. If he had continued to work, you would have saved only on back wages.
Warm Regards,
Bharat Gera
HR Consultant
9322404765
From India, Thane
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Termination from Employment.pdf
TERMINATION OF EMPLOYMENT.doc