Notice period salary not paid after termination due to under performance
Manish Jha
(Querist) 14 December 2013
This query is : Resolved
Dear Sir/madam,
I have been working with a small registered company where after dedicated and good work also due to cost cutting and internal politics they terminated me on the name of under performance.
In appointment letter sent by mail they had notice period of 2 months
whose content are like that:
You will be on a probation of 3 month. As per company policy, notice period is 2 Months.
1. At Will Employment. This is not an employment contract. Employee understands that
his/her employment with company is and will always be “at will” and nothing set forth in
this Agreement or otherwise shall prevent or limit Employee’s right to terminate his/her
employment at any time with or without notice, and company may terminate Employee’s
employment at any time and for any reason without notice.
Kindly tell me I have the right to claim legally to the company to get 2 Months notice period salary.
Here, I want to mention that after 10 months they told to sign another letter where notice period they made as 1 month. Is it legal to change notice period after 10 months of employment.
Kindly suggest.
--Manish
Bangalore
malipeddi jaggarao
(Expert) 14 December 2013
It is a private/public limited company and they have their own HR policies. They have to adhere to the statutory obligations like PF, TDS etc. As far as notice period is concerned, though it is mentioned 2 months - it is not clear whether it applies to both the parties or only to single party. Whether they have given one month notice period and paid your salary?Changing notice period as per company's policy from 2 months to 1 month is not objectionable.
Manish Jha
(Querist) 14 December 2013
Thanks experts.
The company has assured 1 month notice salary to me.
But I am not happy about termination. If they were not happy or wanted me to go they may tell to resign.
I want to fight and prove as I was not under performer than other employees and want proper exit letters.
Also, If company can change notice period middle between employment than its bad as they assure at joining time something and later forcefully make rules as per their favor.
Pls suggest.
Rajendra K Goyal
(Expert) 14 December 2013
Nothing prevent Company to change notice period in the middle of service as it is agreed to by you.
Your appointment terms clearly mention that Company may terminate Employee’s employment at any time and for any reason without notice.
You have liberty to approach law against your termination but merit in case is doubtful.
Kumar Doab
(Expert) 14 December 2013
If you have signed the acceptance of change of notice period then you have consented to it.
If there is any ambiguity in the contract then the benefit of doubt shall be given to the person that has not created the agreement (employee in your case).
If notice period is stated in contract of employment signed as bilateral agreement by employer and employee it is applicable to both.
The terms of employment should be equitable. The various enactments applicable to establishments (proprietary /Pvt. Ltd/ Partnership etc........................) lay down equitable conditions including notice period.
If company has terminated the contract then it has to tender notice pay of 1 month.
Has it supplied the FNF statement for verification and acceptance to you and have you accepted it?
If the FNF statement is not correct then you may decline to accept it in writing.
If the FNF wages have been sent and received demand the calculation sheet showing how the establishment has arrived at the amount sent to you.
You may also attach calculation of dues payable by company to you and if the amounts paid by company do not match you may declare the amounts paid by company as wrong and hence not accepted by you.
You may demand to supply service certificate, relieving letter, FNF statement, FNF wages, salary slip, PF number, PF account slips, ESIC card, Form 16 etc............................etc by redg. post only.
You may demand to withdraw the termination.
Has the company stated any reason in termination order?
The performance can be dependant on various factors out of control of employee e.g; non availability of spares, poor quality, poor service back up, in competitive pricing, outdated/obsolete technology etc etc..............
The downfall in performance can be uniform, universal across all employees/offices/dist/region/zone/pan India and in such a case an employee should not be singled out.
The under performance is also not that easy to prove.
If you have the data, record and confidence to establish that you never underperformed you shall have the edge and merit.
It is small company as stated by you. It doesn’t have the nerve and confidence to even provide hard copy of the contract of employment/appointment letter to its employees.
The promoter may loose his sleep and hunger on getting a simple legal notice leave apart fighting the case at your location or responding to seasoned trade union leaders approached by you.
Another view point is that company may agree to withdraw the termination if you incline to resignation. However you may tender notice of resignation with full notice period of 1 month and let company accept it with immediate effect and tender notice period pay to you.
The employee should have basic knowledge of his rights, labor laws, contracts and must keep access to seasoned trade union leaders, lawyer/law firm and must consult beforehand than acting on his own.
Employee can approach:
-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, Manager Finance, appointing authority, CEO, Chairman, Directors, MD............
Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................
Your lawyer may ask you a set of structured questions and may opine that you are covered.
-Trade Unions/ Employees Unions: They know precise ways to handle such issues
-Inspector under (Name of your state) Shops and Commercial Establishments Act;
-Inspector under Payment of Wages Act( applicable to all employees drawing wages as per def. of wages in the enactment up to Rs.18000/pm) :: The period to lodge complaint with Inspector under Payment of Wages Act is 1Y however to condone the delay is pleasure of the authority.
-RPFC, Addl. CPFC n the state, CPFC......................for PF
-Jurisdictional ESIC Inspector, for ESIC
-ITO-TDS where employee files ITR and Jurisdictional Cit-TDS where employer files ITR
-o/o Labor commissioner
-Civil Court.
There are threads to suggest that employees have been contemplating to lodge criminal complaint u/s 406,420..................
And to approach employer as creditors treating unpaid wages as debt on employer.
Manish Jha
(Querist) 15 December 2013
Thanks Kumar.
Actually the offer/appointment letter sent has mentioned very clearly that as per company norm, notice period is 2 months.
The reason for my exit is that I am comparatively highly paid as i have 12 years experienced but now they want to keep only lower experienced and low paid 5 years employee.
2 months back they suddenly told me to go and I told to pay 2 months notice and hr told that its one sided but its no where mentioned in appointment letter.
The later which they told to sign 1 month back with notice period 1 month is done forcibly as they told you have to sign anyhow irrespective of our objection.
They have told they will settle me after 1 month of time with 1 month notice period salary and till now i have only a mail from him with sub. termination as follows:
----
Manish,
You have fallen below our expectation's bar even after reminding many times to improve yourself and raise the standards bar. It's been more than 3-6 months since we have communicated this information and It's unfortunate that we have reached this stage now, and the company has taken the decision to let you go with immediate effect.
We will provide you one month salary as per company's clause and wish you all the best for your endeavors - thanks!
-----------
I can very easily prove that I was not underperformer as I have always completed each and every task on scheduled time and without anyone's help.
Thing is survival politics by manager and guys and my salary to cut and impress management. They hired me from big reputed company and done like that. I have 2 kids studing and house EMIs burden.
In last one month, this 50 guys sized Pvt. Ltd. company has sacked its cofounder, 4-5 senior guys and when its CEO is currently visiting in India they done with me after 14 months of my employment.
Kindly help.
Kumar Doab
(Expert) 15 December 2013
You should firm up your next venture/employment and must not wait for the result of litigation (if you initiate) as it may take time. Litigation can be lengthy and stressful for some employees.
The company has state in writing to disburse 1 months notice pay.
Now it has to.
The company in its email has referred to reminders and communications given to you on ‘Expectations Bar’.
Did it communicate and remind in writing and did you reply?
If you can prove your points as posted in this thread and establish that you were not below the expectations bar then you have merits.
If you are covered as ‘Workman’ you may succeed to claim Retrenchment Compensation, if not the limit and amount compensation may be in line with standing orders applicable to the company and extended to your designation, appointment letter/contract of employment .......................................and may be as per notice period/pay stated in the contract.
The company has 50+ employees and standing orders may be applicable to it.
Trade Unions in such matters are very effective and may fetch faster and effective results.
Approach seasoned trade un ion leaders: e.g: CITU, INTUC, AITUC..............................and its affiliated unions at your location.
Discuss in person with a competent and experienced labor consultant/service lawyer at your location.
The lawyer that has seen all of your docs can advice you the best. You may proceed only after understanding the merits from your lawyer.
Check with your lawyer for appropriate government as in your case: State or Central before you raise demand notice.
Manish Jha
(Querist) 15 December 2013
Thanks again Kumar.
Actually, they had verbally communicated me previously that they are partially happy with me and I am n't performing them as I take salary/having experience than other.
But I was designated as Sr. Programmer/Engineer there and I was working my tasks on time without help from other but they were expecting leadership etc. which was n't under my designation and responsibility.
There was no any written communication earlier.
I want one advice from you that after Full settlement should I mail the company CEO in US that I want 2 months notice instead of 1 month as per appointment letter otherwise I may take legal action.
What you will advice?
Thanks a lot for your kind advice and help.
Kumar Doab
(Expert) 15 December 2013
In your latest post you have reduced the matter to only point i.e.
“should I mail the company CEO in US that I want 2 months notice instead of 1 month as per appointment letter otherwise I may take legal action.”
It has already been posted that “If you have signed the acceptance of change of notice period then you have consented to it.”
You do not have any merits in your contentions.
Don’t waste your time, energy, money now.
(Expert) 14 December 2013
