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Discussion > Labour & Service Law > Non payment of severance pay for termination during probatio   Unanswered Threads Post New Topic

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There are 5 Replies to this message


Fight4Justice


AVP
[ Scorecard : 32]
Posted On 14 June 2013 at 10:02 Report Abuse

I had been terminated one day before I would have become a permanent employee in the Company,where  I worked for 7 months. The basis stated was non performance. The appointment letter states that both sides need to give 60 working days notice in the case of separation.

However, the Company has communicated that it would not pay any notice pay since the termination was during probation.

Do i have a case to challenge my rights to a severance pay, as in the appointment letter?



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Kumar Doab


FIN
[ Scorecard : 21124]
Posted On 14 June 2013 at 10:27 Report Abuse

 

You may carefully go thru the language of appointment letter and may preferably show it to a competent and experienced labor consultant/service lawyer.

 

You have posted that:

The appointment letter states that both sides need to give 60 working days notice in the case of separation.

However, the Company has communicated that it would not pay any notice pay since the termination was during probation.

 

Has the company stated it in writing?

 

The company might have stated in appointment letter that interpretation of the company sections and clauses in appointment letter shall be final and binding.

 

However if the language states notice period/pay is applicable without any reference to probation period you may have a chance and merit to agitate.

 

You may check and confirm at your end if any employee has resigned during probation period and was made to serve notice period/tender notice pay or if notice pay was adjusted in FNF statement/settlement.

 

 

Your lawyer who has seen your appointment letter can advice you best.



Fight4Justice


AVP
[ Scorecard : 32]
Posted On 14 June 2013 at 12:16 Report Abuse

Extremely thankful for your quick reply andconsideration. Since I do not know of a lawyer in Bangalore, I would be grateful to have a reference of a competent lawyer for the same.

 

Thanks once again.

 



Kumar Doab


FIN
[ Scorecard : 21124]
Posted On 14 June 2013 at 17:02 Report Abuse

 

If you wish to avail the services of a LCI lawyer you can conduct search at:

 

http://www.lawyersclubindia.com/lawyers_search/#.Ubr4oueAqWM

 

Your near and dear ones can also guide you to a competent and experienced labor consultant/service lawyer.

 

The related lawyers list is also being flasshed by LCI on the bottom of this web page as;

 

 

Related 'Labour & Service Law' Lawyers

 

The term non performance may also get examined. The performance parameters, KRA’s, performance Vs parameters may be related and evaluated.

 

If the company has applied this term just to issue the termination without in deed justifying or illustrating the non performance or conducting a fair and transparent appraisal, the employee may have merits to agitate against the order of termination.

 

If the employee has the performance details, and performance criteria, it shall be better.

 

If the fall in performance is uniform and universal across div/office/offices/dist/region/pan India due to factors and circumstances beyond the control of employee, an individual should not be singled out. 

 

You have mentioned AVP probably it stands for Astt. Vice President.

 

Your lawyer may opine that you fall within the category of a workman and employee as in Shops and establishments Act.

 

You may go thru Karnataka Shops and establishments Act:

 

2.Definitions (g)

39. Notice of Dismissal  

 

 

The company may scream the employee does not fall within the category of a workman, and employee as stated in State Shops and establishments Act.

 

And that Specific Relief Act shall apply and the personal contract of employment can not be enforced in a court of law.

 

In case of contract the party which breaches the contract has to compensate the other party. In your case it appears that the compensation/liquidated damages have been defined in the contract in the form and manner of notice pay.

 

The point is that it should be applicable in probation period.

Let the opinion of your lawyer who has seen all the docs are final on all points discussed in this thread.

 

 

 




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Fight4Justice


AVP
[ Scorecard : 32]
Posted On 14 June 2013 at 18:10 Report Abuse

Dear Deob Sir,

 

I cannot thank you enough for the time and effort you have taken to explain the above.

It would be great if you could examine my case.

Please let me know.

Thanks for everything.



Kumar Doab


FIN
[ Scorecard : 21124]
Posted On 14 June 2013 at 21:01 Report Abuse

 

At Bangalore you can access lawyers/law firms par excellence.

 

The jurisdiction of courts would be last location of employee/Location of  redg. office of the company/jurisdictional courts as stated in appointment letter issued to employee and accepted by employee.

 

 

The company shall scream that jurisdiction of courts would be as stated in appointment letter and relationship is of Master and Servant and that personal contract of service can not be enforced in court of law.

 

The issues pertaining to jurisdiction of courts and Specific Relief Act may be two issues to be understood.

 

The competent and experienced labor consultant/service lawyer/law firm at any of these locations should be approached by you.

 

 

In each city there are lawyers who practice only in this filed of law and specialize in it. They are few in number and they are well known.

 

 

Your lawyer/law firm can help you to understand the merits.

 

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

 

You have mentioned AVP probably it does not stand for Astt. Vice President.

 

You have posted that:

 

“I had been terminated one day before I would have become a permanent employee in the Company”

 

Assuming that your services to be confirmed on 2nd of June. This should imply that from the start of office hours on 2nd of June. If you have worked up to close of office hours of 01st then you should qualify.

 

Here once again the language stated in appointment letter should be carefully studied.

 

 

If you fall within the category of Workman: as per Model Standing Orders

 

13.          Termination of employment

 

(3)   Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

 

 

 

THE PAYMENT OF WAGES ACT, 1936:

(The Wage ceiling, for wages as defined in the act, has been increased to s.18000/pm, so it shall cover more number of employees). If you are eligible you may approach Inspector appointed under this Act.

2. Definitions.-

(ia) "employer" includes the legal representative of a deceased employer;

3*[(vi) "wages" means………

(d) Any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

 

If this does not suffice employee may approach a lawyer and contemplate to approach the company as creditor and claim unpaid wages are debt on employer.

 

 

 

If you are covered as Employee under, Karnataka Shops and establishments Act, you may approach Inspector appointed under this Act.

You may go thru section:

18,

21, 29,

34. Maintenance of registers and records:

 

There are thread indicating employees have lodged criminal complaints under Section 406,420…………….and that unpaid wages can be treated as debt on employer.

http://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UboDXNhVMgt

 

The limitation period to claim unpaid amounts in your case may be 3Y.

You may Act in time.

 

Let the opinion of your lawyer who has seen all the docs are final on all points discussed in this thread.

 

 

 

 




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