Hi, I need your advice to move forward from my current situation. I work for a private software services company as Core HR. I have been employed for close to 2 years in this company. I was on maternity leave for 3 months, during which my employer did not pay my salary, saying he would pay me once I returned to my job.
Meanwhile, during the 3rd month of leave, I requested an extension of leave for 15 days, and he agreed to it. On the date I was supposed to return, I wanted to request another 15 days of leave to take care of my baby. So, I requested an extension of leave over the phone to my HR, and he asked me to drop him an email. I immediately sent an email requesting an extension for another 15 days. He didn't reply, so the next day, I inquired by phone. He said they were checking my existing earned leave (I have more than 10 ELs) to consider the possibility.
To my surprise, two days later, late at night, he messaged me on WhatsApp, saying, "Sorry, we are not able to retain you."
The next day, I went to the office to inquire about the reason. They said since I was supposed to report back that day but didn't, they were terminating me for a no-show, and I would not receive maternity benefits or compensation for termination.
I argued that this was unlawful, but he insisted that their handbook had such rules. I mentioned that it was unlawful to dismiss an employee returning from maternity leave. However, the HR argued that I was on extended leave, not maternity leave, so that rule didn't apply.
I tried to explain that they couldn't terminate me for a no-show since I had requested leave on the same day, and they hadn't responded with approval.
So, I am planning to take legal action. Can you please let me know how favorable that will be?
Thanks, KSR
From India, Hyderabad
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1Meanwhile, during the 3rd month of leave, I requested an extension of leave for 15 days, and he agreed to it. On the date I was supposed to return, I wanted to request another 15 days of leave to take care of my baby. So, I requested an extension of leave over the phone to my HR, and he asked me to drop him an email. I immediately sent an email requesting an extension for another 15 days. He didn't reply, so the next day, I inquired by phone. He said they were checking my existing earned leave (I have more than 10 ELs) to consider the possibility.
To my surprise, two days later, late at night, he messaged me on WhatsApp, saying, "Sorry, we are not able to retain you."
The next day, I went to the office to inquire about the reason. They said since I was supposed to report back that day but didn't, they were terminating me for a no-show, and I would not receive maternity benefits or compensation for termination.
I argued that this was unlawful, but he insisted that their handbook had such rules. I mentioned that it was unlawful to dismiss an employee returning from maternity leave. However, the HR argued that I was on extended leave, not maternity leave, so that rule didn't apply.
I tried to explain that they couldn't terminate me for a no-show since I had requested leave on the same day, and they hadn't responded with approval.
So, I am planning to take legal action. Can you please let me know how favorable that will be?
Thanks, KSR
From India, Hyderabad
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After going through your post, certain questions come to my mind. The first question is how a leave application is submitted in your company - is it in hard copy or soft copy? If it is a hard copy, then for the extension of leave, why did you not go personally and submit the application for an extension?
Withholding wages during maternity leave is illegal under the provisions of the Payment of Wages Act or the Maternity Benefit Act, 1961. Nevertheless, when your employer put your monthly salary on hold, it was a signal that you were surplus in your company.
Legal Considerations for Dismissal
For any dismissal, the principles of natural justice need to be followed. In your case, your company has not conducted an enquiry, nor have they issued any show-cause notice to you. Against this backdrop, your dismissal is illegal. You may approach a good lawyer to challenge the dismissal.
Challenges of Litigation
There are a few issues related to litigation. In India, legal cases drag on for decades. You might file a suit after becoming a mother, but you may get a verdict when you become a grandmother! Be prepared for that! Another thing to consider is that the HR fraternity looks down upon job candidates who challenge authorities judicially. Overall, most HR professionals in India are submissive and expect conformity. Now, whether to become a bird of a different feather is a decision you need to make.
My above reply is based on the facts that you have provided. I hope you have given complete information and nothing is being withheld.
All the best!
Regards,
Dinesh V Divekar
From India, Bangalore
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Withholding wages during maternity leave is illegal under the provisions of the Payment of Wages Act or the Maternity Benefit Act, 1961. Nevertheless, when your employer put your monthly salary on hold, it was a signal that you were surplus in your company.
Legal Considerations for Dismissal
For any dismissal, the principles of natural justice need to be followed. In your case, your company has not conducted an enquiry, nor have they issued any show-cause notice to you. Against this backdrop, your dismissal is illegal. You may approach a good lawyer to challenge the dismissal.
Challenges of Litigation
There are a few issues related to litigation. In India, legal cases drag on for decades. You might file a suit after becoming a mother, but you may get a verdict when you become a grandmother! Be prepared for that! Another thing to consider is that the HR fraternity looks down upon job candidates who challenge authorities judicially. Overall, most HR professionals in India are submissive and expect conformity. Now, whether to become a bird of a different feather is a decision you need to make.
My above reply is based on the facts that you have provided. I hope you have given complete information and nothing is being withheld.
All the best!
Regards,
Dinesh V Divekar
From India, Bangalore
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Thanks, Dinesh and essykkr, for your replies. Finally, I went ahead and sent out a legal notice stating "Illegal termination and request of reinstatement."
After receiving the legal notice, the Company MD came down for negotiation and settled the issue by paying 4 months' full salary (3 months' maternity salary and one month as Ex-Gratia). A small amount of Rs. 3000 as a lawyer fee cost me to recover my 4-month salary and teach a lesson to the Company.
They used to pay just the basic salary for employees on maternity leave; from now on, they are paying full wages according to the maternity law.
Thanks,
KSR
From India, Hyderabad
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After receiving the legal notice, the Company MD came down for negotiation and settled the issue by paying 4 months' full salary (3 months' maternity salary and one month as Ex-Gratia). A small amount of Rs. 3000 as a lawyer fee cost me to recover my 4-month salary and teach a lesson to the Company.
They used to pay just the basic salary for employees on maternity leave; from now on, they are paying full wages according to the maternity law.
Thanks,
KSR
From India, Hyderabad
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If you have not received your dues, please issue a winding-up notice to your employer for the recovery of dues. If you want your employee to get your job back, please refer the matter to the National/State Human Rights Commission and also file a writ petition in the High Court. Sending a commercial winding-up petition and registering a complaint with the National/State Human Rights Commission is the easiest. If your company is listed, there are also other ways of bringing your employer to their knees.
Regards,
Octavious
From India, Mumbai
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Regards,
Octavious
From India, Mumbai
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I understand your point. To avoid retaliation, she can do the following:
Issue a Notice to Employer
Issue a notice to her employer, stating that what they have done is wrong and they are legally liable as an employer, and how their termination is illegal.
Resignation and Claim for Damages
She will then issue a resignation, citing mental harassment and hardship. She will also need to file a claim for damages from the company and warn of severe repercussions if they resort to arm-twisting tactics of spoiling her career through disparagement.
Alternative Action: Commercial Winding-Up Notice
Alternatively, she can issue a commercial winding-up notice. The HR and management will immediately come to hold this lady's feet the moment they receive a statutory winding-up notice, claiming various damages. When they come for settlement, ensure they sign a settlement deed.
Regards,
Octavious
From India, Mumbai
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Issue a Notice to Employer
Issue a notice to her employer, stating that what they have done is wrong and they are legally liable as an employer, and how their termination is illegal.
Resignation and Claim for Damages
She will then issue a resignation, citing mental harassment and hardship. She will also need to file a claim for damages from the company and warn of severe repercussions if they resort to arm-twisting tactics of spoiling her career through disparagement.
Alternative Action: Commercial Winding-Up Notice
Alternatively, she can issue a commercial winding-up notice. The HR and management will immediately come to hold this lady's feet the moment they receive a statutory winding-up notice, claiming various damages. When they come for settlement, ensure they sign a settlement deed.
Regards,
Octavious
From India, Mumbai
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Maternity Leave Policy - posting.doc
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