One of my friends was working for a very small IT company (maximum 25 people). She had been working in that company for 1.5 years. Six months ago, by mistake, she deleted some client data files. All these things happened by mistake, and she didn't have any intention for any other reason.
Her manager terminated her on the same day, stating that she had committed a security violation. Since then, she has been asking for a relieving letter, but they have refused, citing it as a data security breach and threatening legal action against her for the mistake. She has been jobless for around 6 months, and other companies are inquiring about her previous company and the relieving letter. What should be the next step? Is there any legal way for her to request a relieving letter or file a case against them? Or any other way for her to secure a job?
Company Background
Some information about the company she worked for: It is not a highly reputed company. They had previously sent her to Sri Lanka on a tourist visa for 2 months to work on a project (working on a tourist visa is not allowed).
Can you please help us find a solution or suggest the next steps to be taken? Thank you in advance.
From India
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Her manager terminated her on the same day, stating that she had committed a security violation. Since then, she has been asking for a relieving letter, but they have refused, citing it as a data security breach and threatening legal action against her for the mistake. She has been jobless for around 6 months, and other companies are inquiring about her previous company and the relieving letter. What should be the next step? Is there any legal way for her to request a relieving letter or file a case against them? Or any other way for her to secure a job?
Company Background
Some information about the company she worked for: It is not a highly reputed company. They had previously sent her to Sri Lanka on a tourist visa for 2 months to work on a project (working on a tourist visa is not allowed).
Can you please help us find a solution or suggest the next steps to be taken? Thank you in advance.
From India
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This is almost like harassing an ex-employee. I'm really surprised at how deleting data is categorized as a security breach and why an IT company has no backup solution! Even a moron knows how to retrieve deleted data. I hope the employer didn't have any previous grudges or issues with her.
Anyway, in my opinion, firstly she can send a formal notice herself or through an advocate to the employer (with a time specification). If the company does not respond, she can file a letter to the Assistant Labor Commissioner. Within fifteen days, the Assistant Commissioner's office will call her and the company for conciliation.
Even then, if your issue remains unresolved, you can file a case in a labor tribunal.
Note: Please consider taking legal advice on this from an advocate.
From India, Delhi
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17Anyway, in my opinion, firstly she can send a formal notice herself or through an advocate to the employer (with a time specification). If the company does not respond, she can file a letter to the Assistant Labor Commissioner. Within fifteen days, the Assistant Commissioner's office will call her and the company for conciliation.
Even then, if your issue remains unresolved, you can file a case in a labor tribunal.
Note: Please consider taking legal advice on this from an advocate.
From India, Delhi
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Understanding Employment Status and Legal Implications
Before approaching the Labour Department, please ensure that she was indeed working as a worker. Normally, IT professionals would not like to be referred to as workers until such a situation arises when they are out of the office. However, there are quite a large number of employees whose employment status by function will not be managerial or supervisory, making them workmen under the Industrial Disputes Act or the Shops and Commercial Establishments Act.
Identifying the Nature of the Dispute
Now, the question is whether the dispute is regarding illegal termination or the non-issuance of a relieving order. If the former is the issue, let me say that the manager who terminated her has made a mistake of law (if the professional falls under the definition of workman only!) by not following the required procedures like issuing a show cause notice/charge sheet, conducting an inquiry, etc. In the latter case, I don't think that the 'law' will help her, but in conciliation, there can be a request (yes, the conciliation officer, say the Labour Officer or Commissioner, as the case may be, can only request for a settlement) from the conciliation officer that a relieving cum service certificate without showing the reason for her leaving, i.e., termination from service for dereliction of duty, may be issued.
Handling Charges and Misconduct Allegations
Regarding the charges, I have a difference of opinion that there may be backup, and the deleted items may be restored, but that is not the issue here. Deleting a customer file or information is dereliction of duty, which is misconduct. Nobody can prove that it was done by mistake or intentionally. Therefore, we should consider it as an act done negligently and take action against the employee. The only thing is that before terminating, the employer should have given opportunities to prove his/her innocence. If she could prove that it was deleted by mistake, termination could have been avoided. That is why I said that the act of termination without conducting an inquiry was the one that went wrong, and not the non-issuance of a relieving letter, which could be issued stating that the employee "was relieved after having been terminated for dereliction of duty." What is the use of such a relieving order?
Regards,
Madhu.T.K
From India, Kannur
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Before approaching the Labour Department, please ensure that she was indeed working as a worker. Normally, IT professionals would not like to be referred to as workers until such a situation arises when they are out of the office. However, there are quite a large number of employees whose employment status by function will not be managerial or supervisory, making them workmen under the Industrial Disputes Act or the Shops and Commercial Establishments Act.
Identifying the Nature of the Dispute
Now, the question is whether the dispute is regarding illegal termination or the non-issuance of a relieving order. If the former is the issue, let me say that the manager who terminated her has made a mistake of law (if the professional falls under the definition of workman only!) by not following the required procedures like issuing a show cause notice/charge sheet, conducting an inquiry, etc. In the latter case, I don't think that the 'law' will help her, but in conciliation, there can be a request (yes, the conciliation officer, say the Labour Officer or Commissioner, as the case may be, can only request for a settlement) from the conciliation officer that a relieving cum service certificate without showing the reason for her leaving, i.e., termination from service for dereliction of duty, may be issued.
Handling Charges and Misconduct Allegations
Regarding the charges, I have a difference of opinion that there may be backup, and the deleted items may be restored, but that is not the issue here. Deleting a customer file or information is dereliction of duty, which is misconduct. Nobody can prove that it was done by mistake or intentionally. Therefore, we should consider it as an act done negligently and take action against the employee. The only thing is that before terminating, the employer should have given opportunities to prove his/her innocence. If she could prove that it was deleted by mistake, termination could have been avoided. That is why I said that the act of termination without conducting an inquiry was the one that went wrong, and not the non-issuance of a relieving letter, which could be issued stating that the employee "was relieved after having been terminated for dereliction of duty." What is the use of such a relieving order?
Regards,
Madhu.T.K
From India, Kannur
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Thank you for the response. Your replies and suggestions provided are really helpful for thinking and taking the next step.
@Madhu: She and her manager always have issues (as she is capable of replacing his position). After this incident, they recovered files the next day, but they didn't give her a chance to explain what happened (terminated on that day only). Still, in several emails, she mentioned exactly what happened and asked for an official meeting to explain in detail. The manager is refusing to meet officially, and below is the reply from the Manager after several follow-ups:
"As mentioned in my email previously, due to the serious nature of your intentional actions which led to your termination, there will be no relieving letter issued at this stage, and the company reserves the right to pursue legal action if deemed necessary."
I am thinking of taking legal action against them through a lawyer. Thank you again for the comments and suggestions. More suggestions are welcome.
From India
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@Madhu: She and her manager always have issues (as she is capable of replacing his position). After this incident, they recovered files the next day, but they didn't give her a chance to explain what happened (terminated on that day only). Still, in several emails, she mentioned exactly what happened and asked for an official meeting to explain in detail. The manager is refusing to meet officially, and below is the reply from the Manager after several follow-ups:
"As mentioned in my email previously, due to the serious nature of your intentional actions which led to your termination, there will be no relieving letter issued at this stage, and the company reserves the right to pursue legal action if deemed necessary."
I am thinking of taking legal action against them through a lawyer. Thank you again for the comments and suggestions. More suggestions are welcome.
From India
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From the post, I understand that she is a worker and would be covered under the labor act. When our well-paid pilots get relief from labor courts, I don't understand why she should not approach them for relief. She should fight against her illegal termination.
Regards
From India, Thane
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Regards
From India, Thane
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It may be illegal to terminate an employee immediately without following the necessary formalities. This could lead to invalidating the "termination" and result in reinstatement with or without back wages. It's already been 6 months since this occurred, and this delay might also work against the termination. I'm not sure what provisions of the law are applicable to this establishment and the employee. Depending on this, follow-up action could be taken by the terminated employee.
From India, Bangalore
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From India, Bangalore
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I also agree with Kumar that for termination, there should be a proper procedure, such as issuing a show-cause notice and obtaining a reply, etc. However, it is too late now to revisit the past. Lastly, regarding the relieving letter, termination itself serves as a form of relief, so there is no separate relieving letter that you can demand. You can request other documents if there is anything pending.
From India, Ahmadabad
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From India, Ahmadabad
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Legal Clarification on Non-Performer Termination, Project Based Appointment Letter, Setting UP .pdf
Resignation cum relieving letter.doc