I was fired. please help!!

As per the condition 7[a], you canot be removed without issuing a termination notice.

Sop therefore, you need not give resignation letter.Instead issue a legal notice to the company calling upon them to give reason for termination you and also claim damages or compensation of 3 months etc etc.

srishaila,advocate,bangalore,9741425514,sdharani120@gmail.com

Learned expert Srishaila has given valuable advice. Kindly follow it and give it a due thought before you resign.

Given below is a heartfelt opinion and only. You may consult elders in the family, competent and experienced well wishers, lawyer/law firm and proceed under expert advice and as deemed fit at your end.

You have posted:

--“ Last week, i was called by the local branch director of the company and advised on Phone that my services with the company is terminated saying it was a company's strategic decision to do so.”

“No termination letter or email was sent to me. It was only a verbal message.”

“Two days ago the company sent me an email asking for my resignation letter and a handover of all office equipment in my possession.”

It is felt that company wants you to resign to avoid termination by company.

If you decide to tender resignation you may avoid resignation with immediate effect and prefer tendering notice of resignation with notice period/effective date of resignation/ future date of resignation in such a case of lay off/last day in office clearly mentioned in it.

You can convince the company or company can invoke 7 c} i} and allow/instruct you not to attend office but draw salary. However you should obtain such order in writing.

This time can be utilized for firming up next venture.

However it is only a feeling and you alone would take the final decision.

It is felt that companies adopt such tactics to avoid lay off/retrenchment compensation.

The lay off compensation may be derived from law of the land, conditions as in standing orders of the company or contract of employment. In your case it may be limited to one month of notice or some clause pertaining to lay off or more.

Your lawyer can guide you better after evaluating your documents and inputs given by you in person. Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman. Your lawyer can explain you connotations of lay off/retrenchment in case of a workman and an employee who is not a workman.

 ---“Two days ago the company sent me an email asking …………… handover of all office equipment in my possession.”

Refer to clause no:

7.    Termination

c) ii)         You must, if requested, return any information and any property in your possession belonging to COMPANY.

The email of the company asking to handover can be veiled termination.

Handover is also conducted in case of termination.

The company has erred by sending a written communication to resign. Company can not force you to resign.

--“My whole team was given the pink slip while another department was fully retained.”

The company has decided to close down one div/dept. where you are employed.

Your team can agitate for lay off/retrenchment compensation. However a competent and experienced labor consultant may be approached for evaluating the merits.

Remain amiable, cool, composed and be smart. If you are able to apply exceptional levels of negotiation, persuasion, persistence, reasoning skills you may be able to resolve situation in your favor and get a deal that may suit you.

You might feel that you are being treated unfairly and you have the temptation of

Pouncing back but before you take any action, collect and compile your evidence and approach a smart labor consultant/service lawyer discreetly with all documents, records and give inputs in person and understand the merits and options.

If you act on impulse you may loose on element of surprise and instead the company may dazzle you with action it might take and swiftness with which it may act.

Watch carefully what you speak and what you write and let everything be carefully structured and drafted wisely.

It is felt that company has already decided the manner in which to dispense with you.

Negotiate to steer the situation in your favor.

You may negotiate with the company to grant you extended time to look for suitable employment elsewhere and request them not to leave you in lurch and then make the authority competent to appoint/terminate issue a written communication to you to this effect. You may get a written/agreed upon agreement of your choice and a good reference.

 If nothing suitable is offered to you and decision of the company is extremely damaging and you have gathered evidence and merits the option of legal recourse shall remain open for you and you may be assured of fruitful results.

The decision and situation of facing a close down and termination/lay off is hurting and tough for both employer and employee.

This is your call and you alone would have to decide in your best interest.

Valuable advice of learned experts/members is sought.

SriShaila and Mr.Kumar. Thank you very much for your advise. I will seek professional help from a good lawyer and act upon his advise. The Company cannot even say they fired me due to bad performance as they have been giving me a performance bonus for the past 5 years for which i have all records. The job markets are realy bad and at a senior level it is extremely difficult to seek alternate employment within a month. So in my opinion i would need a decent  (3-6 months worth of salary) amount in compensation for wrongful termination. Given my situation would you think i can seek more than one months salary as compensation?? if so on what grounds?

Mr. kumar, I agree that I shouldnt act in haste but take a very cautious approach toward dealing with the company.

Once again thank you very much for your advise.

Being unfair to the employees more over the younger and less experienced one is common in India. Nowhere in the world such abuse of employees happen, atleast in the developed world. How can we call ourself an advanced nation if we are not even concerned about the personal livelyhood of another fellow citizen?

Too much of torture and harrsament and people have to work under the threat of termination and still perform. Creativity io is left to dogs.  Constantly younger generation will have to balance between saving their job and ensure the present employment history do not create problems in the future job prospects.

Some line has to be drawn by bringing stringent coporate laws. If you cant guarantee a job for 5 years, then dont employ. Similarly, if an employee cant guarantee stay in a job for 5 years he must not join. Stiff penalties for breaking this must be brought in.

For Nitin : In the present scenario a balancing act is necessary. If you can boldly confess to your new company that you went legal with your previous company then proceed. othrwise seek a compromise. If yu are young (in the age group of within 30 to 35 your future where you can earn much more than what you get as compensation is important. But this is not discouraging. In India law is for the rich (they have wealth and so they also have time) and others will fall by the wayside. Dont loose your productive years getting into a loop.  However, whatever you decide, still it a question of balancing delicately and you alone can decide.

SS

You have posted that you have been working at a senior position implying that you feel that you won’t fall within the category of workman.

Designation alone does not decide employee is a workman or not.

Let your labor consultant/service lawyer evaluate the appropriate forum for you.

The company may bang the desk and plead for specific relief act.

Your lawyer can explain you the merits in that case too.

Some employees by virtue of their proximity to sensitive matters, information, tasks succeed in acquiring a handle on the company and management and thus they succeed in getting a deal from the company and situation may be a win-win for both the parties.

If you have a handle on the company apply it and succeed in working out the most suitable deal for you.

’Lay off’ means failure, refusal or inability of employer on account of shortage of coal, power or raw materials or accumulation of stock or break down of machinery or natural calamity; to give employment to a workman on muster roll. - - ‘Lay off’ means not giving employment within two hours after reporting to work. - - Lay off can be for half day also. In such case, worker can be asked to come in second half of the shift. [section 2(kkk)].

IN case of Industrial Establishment:

-Employing > 100 workers: Chapter V-B of the Industrial Disputes Act prohibits lay off without prior permission of the appropriate government or authority constituted by the appropriate government for such permission.

Refer to specific conditions in Sec 2{kkk} of ID Act. Establishment may apply in Form Q-3. The authority shall evaluate the application applied for is really lay off or not.

-Employing <100 workers no special permission is required.

-Employing< 100 workers but IESO are applicable the employer is requested to pay 50% of the total of basic and Dearness Allowance during the period of lay off.

-Employing<50 workers the provisions relating to lay off provided in Chapter V-A are not applicable. Employer can give lay off. In the absence of service conditions providing for 50% of total of basic wage and allowances as a lay off compensation, employer may pay 100% of the wages.

Assess what is actual intention of the company lay off/retrenchment/closing off the establishment.

ID Act Sec 2{KKK}

During lay off days the workers who have been in continuous service for at least one year are to be paid lay off compensation @ 50% of the normal wages. However, no compensation shall be paid if such lay off is extended for a period beyond 45 days.

section 25A(1)- Chapter V-A is applicable to industrial establishments employing 50 or more workmen but less than 100.

section 25K you will see that Chapter V-B is applicable to industrial establishments employing 100 or more persons.

Industrial Disputes Act prescribes the procedure to be followed in case of lay-off, retrenchment or closure and does not confer any power on the employer to lay-off, retrench or for closure. Therefore the power to lay-off has to be found in the certified standing orders, or model standing orders.

If both the certified standing orders and the model standing orders are silent or in cases where the Industrial Employment(Standing Orders) Act is not applicable to the companies, then the power to lay off has to be found in the contract of employment which is the appointment letter. If the appointment letter is also silent then the employer has no power to lay off and if he lays off his workmen, they are entitled to full wages for the period for which they were laid off.

The term Industry does not mean factory alone. The Standing Order Act is applicable to all establishments to which the Payment of Wages Act, 1936 applies. Section 2 (e) (iv) states that any establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen is an industrial establishment. As such minor port will also come under the definition of Standing Orders. Even if not covered by virtue of definition or number of employees, it is always desirable to have standing orders since it clearly defines the relationship between employer and employees.

Does your company have a policy of 'Reduction in Force' which they may take as a basis of Layoff? Has the company has mentioned about it in contract of employment.

The employees including you and your team members may go thru the standing orders, appointment letter carefully, and show it to a competent and experienced labor consultant/service lawyer and give inputs in person.

The labor consultant/service lawyer can elaborate the lay off/retrenchment compensation if any applicable to your team and you along with claiming wrongful termination.

The companies are smart and apply tactics to subdue the employees so that they are able to achieve their self centered, selfish motives by all means.

The employee should be smart enough to understand what is possible and what is not possible in his case and peruse the option which can fetch him results.

Your lawyer can explain the merits and possibilities of staking a claim for lay off or wrongful termination.

Once you are clear you can peruse the most appropriation option with confidence as deemed fit at your end.

Dear sir,

After waiting for 3 months hoping my company would settle my dues and since nothing good has come out, my lawyer has advised that we will go ahead and send a notice to the company. We will be claiming for wrongful termination, loss of pay etc. My lawyer has gone through all the documents and suggests that we have a strong case against the company.

Will keep you all posted on the developments. Once again thanks for all your help