I am working in a private firm. I was on maternity leave since 1st October '17. After receiving my salary for the month of October, the company held back my salary until now. In January, they terminated me via telephone. After sending several emails requesting a written notice and the reason for termination, I did not receive any reply. I discussed this issue here, and as suggested, I went to rejoin the office on 2nd April. The HR informed me that the management has decided not to keep me in the company anymore and that I will be given all my dues.
My Dues
According to me, my dues are:
1. Due salary for 5 months
2. Notice period salary
3. Gratuity
4. Leave encashment
5. PF
However, they are now saying they will only pay the maternity benefit salary. Other dues will not be paid. The appointment letter mentions that the company provides gratuity. What should I do now? Should I accept the maternity benefit salary and fight for gratuity separately, or should I not accept anything unless they pay me all my dues?
From India, Kolkata
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My Dues
According to me, my dues are:
1. Due salary for 5 months
2. Notice period salary
3. Gratuity
4. Leave encashment
5. PF
However, they are now saying they will only pay the maternity benefit salary. Other dues will not be paid. The appointment letter mentions that the company provides gratuity. What should I do now? Should I accept the maternity benefit salary and fight for gratuity separately, or should I not accept anything unless they pay me all my dues?
From India, Kolkata
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What has happened with you is regrettable. Nevertheless, we have to find a way to come out of this unfavorable situation. I recommend you approach the Labour Officer of your area and submit an application. When you go there, take with you proof of your employment like an identity card, appointment letter, and printout of your correspondence with the company authorities. While giving the application, go to the office of the Labour Officer, talk with him, and explain your problem. It is not just a question of going to that office and submitting your application.
Please note that the Labour Officer is a government-appointed authority who handles labor issues and is different from a Labor Lawyer. Lawyers charge a professional fee for providing their services, whereas the LO does the job free of cost. Yes, some unofficial costs you might incur, but they are small.
Eligibility for Gratuity
Do you have continuous employment of approximately five years or more? If more than five years, then only you are eligible for the gratuity.
Thanks,
Dinesh Divekar
From India, Bangalore
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8074Please note that the Labour Officer is a government-appointed authority who handles labor issues and is different from a Labor Lawyer. Lawyers charge a professional fee for providing their services, whereas the LO does the job free of cost. Yes, some unofficial costs you might incur, but they are small.
Eligibility for Gratuity
Do you have continuous employment of approximately five years or more? If more than five years, then only you are eligible for the gratuity.
Thanks,
Dinesh Divekar
From India, Bangalore
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Clarification on Employment Status and Legal Rights
Dear Ms. Aditri,
Had you mentioned the capacity of your employment, i.e., whether an employee falls under the category of a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947, it would have been better for us to answer all your queries. These queries involve non-payment of statutory dues and illegal termination of employment.
Maternity Benefit and Employment Termination
1) Your total maternity benefit amounts to 182 days' salary. If the employer is willing to pay the entire balance now, you can accept it without affecting your other claims.
2) Refusal to provide employment upon your return from maternity leave generally constitutes retrenchment, which requires one month's notice or pay in lieu thereof. Additionally, during your authorized absence due to pregnancy, Section 12(1) of the Maternity Benefit Act, 1961 prohibits discharge or dismissal by the employer. Therefore, it could be considered illegal retrenchment if you are a workman or illegal termination of the contract of employment by the employer if you are above the cadre of workman. In either case, you are entitled to retrenchment compensation plus notice pay or damages for breach of the contract of employment.
Gratuity and Leave Encashment
3) Your post does not mention the applicability of the Payment of Gratuity Act, 1972 to the establishment and the total length of your service there. If both are applicable, you can file a claim for gratuity under the Act before the Controlling Authority in the area where the establishment is located.
4) Leave encashment upon termination of employment depends on the labor laws applicable to the establishment and the employee or the specific terms of the contract of employment/Leave Rules of the organization. In any case, it should be included in your Full and Final Settlement.
Provident Fund Withdrawal or Transfer
5) If you have decided not to seek further employment elsewhere, you can withdraw your Provident Fund (PF); otherwise, arrange to transfer your account to the new establishment where you may potentially work in the future.
From India, Salem
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Dear Ms. Aditri,
Had you mentioned the capacity of your employment, i.e., whether an employee falls under the category of a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947, it would have been better for us to answer all your queries. These queries involve non-payment of statutory dues and illegal termination of employment.
Maternity Benefit and Employment Termination
1) Your total maternity benefit amounts to 182 days' salary. If the employer is willing to pay the entire balance now, you can accept it without affecting your other claims.
2) Refusal to provide employment upon your return from maternity leave generally constitutes retrenchment, which requires one month's notice or pay in lieu thereof. Additionally, during your authorized absence due to pregnancy, Section 12(1) of the Maternity Benefit Act, 1961 prohibits discharge or dismissal by the employer. Therefore, it could be considered illegal retrenchment if you are a workman or illegal termination of the contract of employment by the employer if you are above the cadre of workman. In either case, you are entitled to retrenchment compensation plus notice pay or damages for breach of the contract of employment.
Gratuity and Leave Encashment
3) Your post does not mention the applicability of the Payment of Gratuity Act, 1972 to the establishment and the total length of your service there. If both are applicable, you can file a claim for gratuity under the Act before the Controlling Authority in the area where the establishment is located.
4) Leave encashment upon termination of employment depends on the labor laws applicable to the establishment and the employee or the specific terms of the contract of employment/Leave Rules of the organization. In any case, it should be included in your Full and Final Settlement.
Provident Fund Withdrawal or Transfer
5) If you have decided not to seek further employment elsewhere, you can withdraw your Provident Fund (PF); otherwise, arrange to transfer your account to the new establishment where you may potentially work in the future.
From India, Salem
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Thank you all. Mr. Umakanthan, can you please tell me about the "category of workmen u/s 2, Industrial Disputes Act 1947"? I do not know this. I have worked there for almost 6 years continuously. It is an ISO 9001:2014 accredited company. Does the mentioning of providing gratuity in the appointment letter itself oblige the employer to pay gratuity?
From India, Kolkata
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From India, Kolkata
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Dear Aditri,
PF is something you need to claim from PF authorities. You are eligible for gratuity and leave encashment. Instead of asking for full and final settlement, you should first inquire about continuing employment even if you do not wish to continue. Please visit the Labor office for assistance in case of illegal termination while on leave. Let them obtain the letter from the labor office. Did you seek advice from the labor office on the matter, as suggested by the knowledgeable members of this fraternity?
Thank you.
From India, Pune
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PF is something you need to claim from PF authorities. You are eligible for gratuity and leave encashment. Instead of asking for full and final settlement, you should first inquire about continuing employment even if you do not wish to continue. Please visit the Labor office for assistance in case of illegal termination while on leave. Let them obtain the letter from the labor office. Did you seek advice from the labor office on the matter, as suggested by the knowledgeable members of this fraternity?
Thank you.
From India, Pune
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Writing a Letter to the Appointing Authority
First, write a letter to your appointing authority. The appointing authority is the only one with the power to terminate an employee. State that you are on maternity leave and enclose the leave approval document. Share the name, date, and time when you either called or received a call from the company, along with details of the verbal telephonic communication. Provide reference clauses from your appointment letter related to what you were supposed to receive from the company. Mention that you have enclosed a xerox copy of the appointment letter.
Addressing Termination During Maternity Leave
State that when an employee who is on approved leave, especially maternity leave, is informed of termination over the phone, it is a violation of humanity. Such actions can have physical and mental repercussions, and the company would be held responsible for any harm caused. Prepare a chart of compensation for all legal dues and enclose a copy. Copy this letter to the Assistant Commissioner of Labour and the police station near your company's location.
Ensuring Acknowledgment of Letters
Ensure all letters are sent strictly via Registered A.D. for acknowledgment. I hope this guidance is beneficial.
With Best Regards,
PRASHANT DESHPANDE
From India, Pune
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First, write a letter to your appointing authority. The appointing authority is the only one with the power to terminate an employee. State that you are on maternity leave and enclose the leave approval document. Share the name, date, and time when you either called or received a call from the company, along with details of the verbal telephonic communication. Provide reference clauses from your appointment letter related to what you were supposed to receive from the company. Mention that you have enclosed a xerox copy of the appointment letter.
Addressing Termination During Maternity Leave
State that when an employee who is on approved leave, especially maternity leave, is informed of termination over the phone, it is a violation of humanity. Such actions can have physical and mental repercussions, and the company would be held responsible for any harm caused. Prepare a chart of compensation for all legal dues and enclose a copy. Copy this letter to the Assistant Commissioner of Labour and the police station near your company's location.
Ensuring Acknowledgment of Letters
Ensure all letters are sent strictly via Registered A.D. for acknowledgment. I hope this guidance is beneficial.
With Best Regards,
PRASHANT DESHPANDE
From India, Pune
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Whether your employer issued any termination letter or verbal communication?
How many workmen/employees/staff and managers are working in that firm?
What is your position/designation/work you do?
Have you communicated the date to resume duty after MB?
You should immediately write a letter and send it via email stating that you will resume duty on the specified date, and also send a hard copy by registered post. On the particular date, go to resume duty. If they say anything, ask them to provide it in writing, even if there is a termination letter. By doing this, you can strengthen your case. Do not weaken your case unnecessarily. Maintain a fighting spirit to seek justice.
From India, Mumbai
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How many workmen/employees/staff and managers are working in that firm?
What is your position/designation/work you do?
Have you communicated the date to resume duty after MB?
You should immediately write a letter and send it via email stating that you will resume duty on the specified date, and also send a hard copy by registered post. On the particular date, go to resume duty. If they say anything, ask them to provide it in writing, even if there is a termination letter. By doing this, you can strengthen your case. Do not weaken your case unnecessarily. Maintain a fighting spirit to seek justice.
From India, Mumbai
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Maternity Leave Policy - posting.doc
Temporary, adhoc & contract worker also eligible for maternity leave 12102017.pdf