Hello experts,

I am working as a software engineer in a mid sized software company. Recently, I was called to a meeting with the HR and my manager where I received a letter from them saying that my performance was below expectations and I was being put on a performance improvement programme(PIP)  with specified targets and goals at the end of which it would be decided to let me continue in the organization or to separate from the organization. As per my employment offer the company can terminate me 'without cause' by giving 3 months notice period. Also there is a sentence that in case of misconduct, unauthorized leave, insubordination or if the company finds the performance not satisfactory they can terminate without giving such notice period. Also, during my conversation the HR was using language like 'separation', etc without caring for sentiments. This has agitated me and when they asked me to sign the letter, I just told them 'I cannot sign any damn letter'. Now the HR objected saying I am using the word 'damn' and this is violating the code of conduct and they can terminate me on grounds of misconduct and let this be considered a warning. Even though the HR himself was not behaving well and literally shouting at me.

My queries are:

1) Can a company really terminate an employee on such minor grounds like using the word 'damn'? We dont have freedom of speech? We spend more than 45 hrs a week at the workplace and we cannot keep our cool all the time. Do we have to keep living in fear of termination? We should allow other people to say what they want but we cannot say what we want because of fear of termination?

2) How do I handle the situation related to the so called 'performance improvement programme'. I do not find the goals outlined there realistic.

3) In India, 'Termination' is considered as something bad which can affect the future job prospects and career of the employee. On these grounds, if an employee is terminated, can the employee take legal action on the grounds that it damages his reputation, employment record, and future job prospects and career?

4) In general, what are the legal options available to an employee in case of termination?

5) I have now already started looking for a new job because I cannot work in a place where people keep creating tensions.

Thanking you in advance and awaiting your responses.

"Even though the HR himself was not behaving well and literally shouting at me."

Employee should record such transactions (audio/visual). These may come handy at appropriate time in appropriate forum. "Damn" is not a derogatory word.

HR has failed in coercing you to sign a document, which shall not go well with superior of HR and that is why this HR guy is now looking for some situation.

“I was being put on a performance improvement programme(PIP)  with specified targets and goals at the end of which it would be decided to let me continue in the organization or to separate from the organization.”

PIP is touted opportunity to be produced as a document to show that company granted opportunities like “Verbal Challenge” training under PIP to better the performance of the employee and thus justify the termination.

The targets given are usually unreasonable. In case of Uniform and Universal decline in sales throughout the company, trade and industry an employee should not be singled out.

However Hr version is majority of the employees have been tested and it is time to replace them. So the PIP etc.

If many employees are being put under PIP it is time to join hands, be united and be witness to each other. Line management and HR shall do everything possible to coerce and force all of you but if you are united and willing to be witness to each other you can walk out of situation without any major loss or suffering. All of you may approach a competent and experienced service lawyer and proceed under expert advice.

It is time to firm up your next venture and move on.

You shall face certain issues now and it shall be better to be careful on what you say and what you sign. Majority of the employee under PIP shall be discharged either by resignation or termination.

You could have pointed out that you need to examine the document and shall sign later.

If any memo is issued you may mention that you wanted to take some time and submit the document latter but the HR personnel was pushing you to sign on the pre printed/ filled up  document then and there and was rude and crude with you.

If a show cause notice is issued let your lawyer draft the reply. It shall be appropriate to consult your lawyer and prepare beforehand.

In majority of the states IT companies are exempted from Industrial Employment Standing Orders Act. Karnataka is withdrawing this exemption.

In a given situation employee can invoke the Industrial Employment standing orders Act, Payment of Wages Act, SE Act, and ID Act as per explanation of employee under these

Enactments or approach civil court.

Mr. Doab,

Thanks a lot for your detailed response. Unfortunately, I am located in Pune, Maharashtra and the Industrial Employment standing orders act will not be applicable here.

I did some reading about some of the other acts you mentioned, especially the Industrial disputes act which categorizes termination as an industrial dispute which can be taken to the labour court. Regarding, the Shops and Establishments Act, would this be applicable to software companies, i.e., would a software company qualify as a 'Shop' or 'Establishment'?

Also, during my conversation with the HR, I had told him that I am not worried about termination. He then threatened me that this would damage my future career prospects, because if any future employer conducts a background check, then they will reveal to them that the employee was terminated. In the event that such a thing happens, is there any way to get a 'gag' order and prevent the present company from revealing any such details to a future employer and thus prevent them from damaging my reputation and avoid any such other complications?

Awaiting your response, and thanks again.

To the best of our understanding SE Act is applicable to your industry.

Software companies (including services and training) in Tamil Nadu are assured of uninterrupted power supply, and exempted from Pollution Control regulations, Factories Act and Chapter II of the Tamil Nadu Shops & Establishment Act.

However Section: 41 Notice of Dismissal applies and is not exempted.

You may find out what is the status in your state.

http://www.lawyersclubindia.com/forum/Experience-letter-and-relieving-order-after-termination-62258.asp#.UBJlLiIWrts

"He then threatened me that this would damage my future career prospects, because if any future employer conducts a background check, then they will reveal to them that the employee was terminated."

Employee should record such transactions ( audio/visual) for use at appropriate time in appropriate forum and also try to keep some eveidence/witness.

"In the event that such a thing happens, is there any way to get a 'gag' order and prevent the present company from revealing any such details to a future employer and thus prevent them from damaging my reputation and avoid any such other complications?"

Approach a competent and experienced service lawyer/labor consultant at your location.Your law may be in a position to help you.

You can conduct lawyer search at LCI:

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

e.g.

jagadish paranjape

darshana sawant

List of related lawyers is given at the bottom of this web page.

You need to build record in your favor.

If terminated you shall have to litigate without any any record. Company shall block your access to emails etc.

Obtain employee rule book,HR policy,standing orders.........These may be available at HR page on employee portal/intranet.

let your lawyer submit a carefully strucured representation to company, based on inputs given by you and record produced by you.