Termination of employment & harassment
ANILKHANNA
(Querist) 26 February 2014
This query is : Resolved
Dear Concern
I joined Private Company in Jul’12 (18months) and terminated my services for under performance. When termination processed I was on Sick leave(employee insurance act, sec-73 states not possible during sickness) due to Dislocated fractured in right hand – PIN installed in bones. I am right handed person. Two different Doctors advised to avoid travelling & work with right hand. But company’s empanelled doctor given opinion to join (as per HR Mail), but I had not joined and shared advised of central government doctor’s advised. And company issued termination letter on this. Before going on leave, my manager put me under Performance Improvement plan and before the final review I went on sick leave.
My Line manager & skip manager (boss of line manager) ruin my career of12 yrs for escalating my grievances to HR-Director of my company. In the complaint I also recorded issues of exploitation & false allegations, few of them were:
1. Stopped reimbursements of consecutives 4 months
2. Taking business session of continuous 14 hrs
3. Using abusive language (Chu*ia & sister Fu*ker) in his cabin & telephonically – Audio recording not available
4. Forced to signed back dated Performance Improvement Plan (PIP)
5. Bias Treatment & putting me under such situation to hamper my performance. All worst branches mapped to me so that my performance (sales) should not come.
6. Line Manager visited my home during my absence in night (10:15pm), when my wife was alone and misbehaved
7. Asked me to report on email morning & evening to exploit among other colleagues
8. Asked to work on weekly off days i.e. Sat & Sunday
Someone please guide, is it possible to reinstate (by stay order) my employment with company for 3-4month (just to buy time).
Other fact are as following:
• company had disbursed basic salary in lieu of notice period
• company’s belongings are in my custody
• my other reimbursements of 40k are still pending at company’s end
• Intentionally, during PIP peried I requested support (through emails) from my line manager & trainer to support me but they had not supported. All emails available.
• Empanelled doctor was MD and my two doctors was Ortho surgeon & ortho specialist
• During my employment I, company issued one In-subordination letter and mentioned that I am not authorized to challenged/argued the letter
P L E A S E H E L P B Y S U G G E S T I ONS
Regards
Anil
Kumar Doab
(Expert) 26 February 2014
You are in which state and redg . office of the company is in which state?
What is your designation and nature of duties?
What is this establishment; Commercial or Industrial and what is the line of the business of the establishment e.g; IT, banking Insurance etc?
There are publications that:
Central government raises the limit for ESIC upto Rs 25000
If you are covered by ESIC then you may invoke Sec:73 of ESI Act.
Although you have escalated the Grievance to HR-Director the Termination the PIP and Termination is processed by HR.
For work done on off days you may demand OT/Compensatory off.
Revert to the points raised.
ANILKHANNA
(Querist) 26 February 2014
Thanks for your kind support. Required details are as following:
1. Posted in Punjab state
2. Company’s registered office is in Gurgaon
3. Asst Manager responsible to manage sales through channel partners
4. Insurance industry
5. My basic salary p.m. is 19,070/- and gross is 47,000/-
6. I am not aware whether Central Government considers basic salary or Gross salary for Sec-73 of ESI Act.
7. I had escalated grievances in the month of June’13 for harassment / exploitation and post this complaint Line Manager & Skip Line Manager along with HR put their all efforts to create documentation to process termination
8. Mails marked to Line manager with keep HR in loop for not approving my Salary & reimbursements. No action had taken
9. Also numerous Emails declaring that line manager & skip line manager doing lewd acts for giving me such channel which was almost dead for more than one year. Root was to hamper my performance
10. Even they had not given equal opportunity to perform (records available). Less no. of branches and set higher targets. Other employees having lower target but more number of branches
11. Also marked Emails for asking supports from Line Manager during Performance Improvement plain of 3 months but not provided by him.
12. Even I demanded weekly review (HR manager also acknowledged on Email) but after taking sign on PIP format later HR changed it without my consent.
13. As per my available records Training team also failed to get result from this channel
14. Also requested for personal meetings formally for resolving personal vendetta but line manager ignored
15. I am not having records of working of Sat & Sun because company had blocked my id to retrieve id
16. At this time of joining Notice period was 3 months and I am not aware when they have changes this condition. Even company has not taken my consent.
I wish to lodge case to get following desired “OUTCOME”:
• To get stay order on Termination
• Punishment for Mental Harassment / Exploitation
PLEASE GUIDE THE PROCESS..
Regards,
Kumar Doab
(Expert) 27 February 2014
Designation alone does not decide whether employee shall be covered as ‘Workman’ as in ID Act ‘Employee’ as in (Name of your state) Shops and Commercial Establishment Act or not…………….
Your able Labor consultant/service lawyer may ask you a set of structured questions and may opine that you are covered by both of these enactments, and in such a case your lawyer may opine to approach o/o Labor commissioner, Inspector under Punjab Shops and Commercial Establishment Act…………………………………..or Civil Court.
The office where you are located must have registered under Punjab Shops and Commercial Establishment Act and there is Bar on Lawyer as per this Act hence company shall have to send its employee (usually HR) if you agitate in this Forum.
It is felt that appropriate Government in your case if you invoke ID Act shall be Central hence you may approach CGIT: Chandigarh in place of o/o Labor Commissioner of Punjab State…………….
You may note that Development Officer of LIC is covered as ‘Workman’ and in other cases involving Private Life Insurance Companies the Sales Manager, Unit manager etc have been accepted as ‘Workman’…………………
In many companies employees are trying to form internal employees union Pan India.
If it is acceptable, you may send the name of your company by PM.
If you desire the details of the existing unions can be shared with you by PM.
In some states the Employees Unions for Private Life Insurance Companies have been formed and affiliated with Trade Unions and it is said that the terminated employees have been reinstated thru unions. Employees in your state too have been contemplating to unite and for unions.
In many sectors in your state, in which employees are united, the unions have emerged as Strong, effective, and formidable e.g: Pharma………………………etc
You may get in touch with like minded individuals………………………………in yours and other companies.
7 people are required to form a union.
Then there are existing trade unions that may support you. You may get in touch with the secretary, President.
It is felt that route thru union may suite you.
If you decide to remain in the same trade then if there are unions the larger issued can be addressed by unions.
It shall be proper to consult a competent and experienced Labor consultant/service lawyer in person and show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT (CERTIFIED/MODEL) AND EXTENDED TO YOUR DESIGNATION, HR policy, Appraisal policy, PIP policy, Termination Order, Salary slip from first month of employment to last month: showing break up of salary, ESIC Card, and all other relevant communications……………………………………….
If ESIC deduction was made (1.75% from
salary) you may show it to your lawyer). You can go thru definitions in ESI Act e.g at:
http://www.esic.nic.in/Tender/ESIAct1948Amendedupto010610.pdf
THE EMPLOYEES’ STATE INSURANCE ACT, 1948
2. Definitions. — In this Act, unless there is anything repugnant in the subject or context,
—
(1) “ appropriate Government ”
(9) “ employee ” means
(14) “ insured person ” means a person who is or was an employee in respect of whom
contributions are or were payable under this Act
(22) “ wages ” means
Definition of wages is also explained at:
http://www.esic.nic.in/wages.php
Apparently there are merits in your case however let your lawyer examine all docs, records, and merits and let your lawyer’s opinion be final on the merits in your case.
If the order of termination is bad your lawyer may opine to contest it.
You may initiate by writing to good offices of appointing authority, MD and ask to withdraw the termination order say in next 15 days……………………………..and highlight that this shall mar your employability and career in future, and also highlight the reasons, indiscrimination, vindictive and zealous mindset in effecting termination……………………..
Salary is not to be approved by any line manager. If employee is kept in employment the salary has to be paid even if line manager has not approved it (as per some internal policy of the company). Earned Wages are protected.
Your lawyer may opine to approach Inspector under Payment of Wages Act too.
The local Labor Inspector at your location may also be the Inspector under Payment of Wages Act and also under Punjab Shops and Commercial Establishment Act………………………………….however while you lodge a complaint mention the name of the enactment and request to process the complaint under the enactments separately. Open as many fronts as possible.
If company has defaulted on payment of wages it must have defaulted on PF,ESIC,TDS too hence you can lodge a complaint with RPFC in nearest PF office, ESIC Inspector, IT Inspector-TDS where you file ITR and jurisdictional CIT-TDS where company files ITR.
Even if you do not have record of OT/work on off days-holidays company on its own has to keep record in various forms, registers to be maintained under Punjab Shops and Commercial Establishment Act and pay OT with wages on usual pay day.
Company can be fined for default in payment of wages by the usual pay day by say Rs.7500/instance.
The opinion of Super Specialist Ortho Surgeon (that too Central Govt. Doctor) should score over opinion of MD; Physician and may get termed as Biased if MD; Physician is on rolls of the company.
The termination has already been effected and reason for termination is performance that probably has not been proved by company and seems to be stigmatic that may affect future employability……………………………………..and now you shall need to get the order of termination called back.
You can appeal for damages in appropriate forum as suggested by your able lawyer.
Notice period/pay if is part of service conditions then it should be properly communicated and should be accepted in writing.
