Dear Team, please help me solve the following case study:
Case Study: Security Guard Termination and Legal Dispute
A security guard, who was on the payroll of a contractor, was terminated by the company for being intoxicated while on duty. This behavior was observed 2-3 times, and he had been warned previously. However, as there was no improvement, the contractor terminated his employment. A few days later, he approached the HR department of the company and requested an experience letter, citing financial difficulties and the need to secure another job. HR issued the experience letter, indicating that the security guard was employed under the contractor.
Now, the security guard is misusing this letter and has filed a case in labor court, claiming he was on the company's payroll and that the company issued him an experience letter for a contract role. He is demanding to be reinstated on the company's payroll. The company has already responded to his letters, explaining all the facts, but every 15 days, he sends another letter through the labor office. Please advise on how to resolve this matter and which laws to refer to.
Thanks,
Smita.
From India, Pune
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Case Study: Security Guard Termination and Legal Dispute
A security guard, who was on the payroll of a contractor, was terminated by the company for being intoxicated while on duty. This behavior was observed 2-3 times, and he had been warned previously. However, as there was no improvement, the contractor terminated his employment. A few days later, he approached the HR department of the company and requested an experience letter, citing financial difficulties and the need to secure another job. HR issued the experience letter, indicating that the security guard was employed under the contractor.
Now, the security guard is misusing this letter and has filed a case in labor court, claiming he was on the company's payroll and that the company issued him an experience letter for a contract role. He is demanding to be reinstated on the company's payroll. The company has already responded to his letters, explaining all the facts, but every 15 days, he sends another letter through the labor office. Please advise on how to resolve this matter and which laws to refer to.
Thanks,
Smita.
From India, Pune
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how can a company HR issue an experience letter to contractor worker? this is the sole part of contractor , not of the principal
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Dear Smita, there is a little contradiction in your post. At one place, you write that you have received notice from the Labour Court. At another, you write that you have been receiving notice from the Labour Office. Therefore, please clarify this discrepancy.
Regardless of whether you have received notice from the Labour Office or Labour Court, your company needs to send their representative and prove that the security guard was a contract employee.
Termination Procedure
Now, regarding the termination of his services, what procedure did you follow before terminating his services? While consumption of alcohol while on duty is misconduct, what proof do you have? If you have incontrovertible proof, did you conduct the domestic enquiry before termination? Your case is not weak per se, but not conducting the enquiry could complicate the matter further.
Thanks,
Dinesh Divekar
From India, Bangalore
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Regardless of whether you have received notice from the Labour Office or Labour Court, your company needs to send their representative and prove that the security guard was a contract employee.
Termination Procedure
Now, regarding the termination of his services, what procedure did you follow before terminating his services? While consumption of alcohol while on duty is misconduct, what proof do you have? If you have incontrovertible proof, did you conduct the domestic enquiry before termination? Your case is not weak per se, but not conducting the enquiry could complicate the matter further.
Thanks,
Dinesh Divekar
From India, Bangalore
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You wrote that the company terminated him, later said the contractor terminated. The company's principal employer should not terminate a contract employee. You issued an experience certificate. That is also incorrect. Anyway, fight the case in LC.
Varghese Mathew
Tvpm Ph 9961266966
From India, Thiruvananthapuram
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Varghese Mathew
Tvpm Ph 9961266966
From India, Thiruvananthapuram
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Dear Smita, don't panic and do not reply in writing to the person. You can prove to the authorities (Labour office or Labour Court) that he was a contract worker deployed to work on your premises by his immediate employer based on his appointment letter, wage register, ID card, attendance register, etc., and other records that the contractor would have maintained. It was certainly a mistake if the HR of the principal employer issued a service certificate on the company's letterhead. Depending on the contents of the letter, you can twist it in your favor. It seems like the person may take you to the Labour Court. He can invoke provisions under the Industrial Disputes Act or MRTU & PULP Act. Under the ID Act, he has to go through the conciliation process first, then adjudication. But under the MRTU & PULP Act, he can directly approach the Labour Court. In any case, you need to engage a good labor lawyer if the matter goes to the legal authorities. For now, take every step only after consulting your lawyer.
Regards, Vinayak Nagarkar HR Consultant
From India, Mumbai
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Regards, Vinayak Nagarkar HR Consultant
From India, Mumbai
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Under Industrial Disputes Act also he can go to Labour court without reference by appropriate Government. Varghese Mathew
From India, Thiruvananthapuram
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From India, Thiruvananthapuram
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If he is a contract employee, ask the security company to write to the Labour Office stating that he is their terminated worker and not an employee of the PE.
V. Sounder Rajan
HR & Employment Law Attorney
Specializing in Recruiting and Contract Staffing Industry
M: 98401-42164
From India, Chennai
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V. Sounder Rajan
HR & Employment Law Attorney
Specializing in Recruiting and Contract Staffing Industry
M: 98401-42164
From India, Chennai
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Kami Export - Negative Covenant in Contract of Employment.pdf (1).pdf