Termination of an employee


An employee got terminated on the spot for breaching IT policy. The company is not ready to give an experience letter, due to which the employee is not getting another job.

How this employee can get the experience letter?

 
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you  may have appointment letter and payslips with that you can approach the new job opprunity 

 
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but interviewer is asking for experience letter

 
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Dy Director

complain to labour commissioner

 
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but in this case employee has breach the company IT policy, so he is in a guilty position, How labor commisioner will help him ?

 
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Dy Director

he can challnage termination of service without inquiry and can move to LC fror this.

 
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FIN

 

Due to high handed, adamant, recalcitrant conduct, exploitation, presence of unscrupulous employers in the trade, employees in the IT sector have been organizing and some trade unions have been formed.

 

You are in which state?

HO/redg. office of the company is in which state?

  

 

No one knows what is this IT policy of the company, what is the breach/misconduct, how the employee is guilty and how come a major punishment of Termination be awarded on the spot?

 

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

 

Some states had granted blanket exemption to IT/ITeS companies from the provisions of Industrial Employment Standing Orders Act. State like Karnataka has ended this blanket exemption and all companies were ordered to submit draft standing orders by Dec12 (Many companies are said to have submitted) for certification within Mar13. Till then Model Standing Orders were to apply.

 

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.

14.  Disciplinary action for misconduct.--(1) A workman may be fined up to two per cent of his wages in a month for the following acts and omissions, namely:………………….

 

Note.--Specify the acts and omissions which the employer may notify with the previous approval of the ......................Government or of the prescribed authority in pursuance of section 8 of the Payment of Wages Act, 1936.

 

 

16.  Certificate on termination of service.--Every permanent  workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

 

NOTE. - There is a provision under  this  Act for issuing a service certificate at the time of  dismissal, discharge or retirement and every person is entitled to take such certificate.

 

{ Supreme Court held that the misconducts mentioned in the standing orders were exhaustive and a workman could not be punished for an act or omission which was not described as a misconduct in the standing orders.

Glaxo Laboratories vs. P.O. Labour Court, Meerut & Others AIR 1984 (SC) 5Q5; 1983 Lab, IC 1909. }

It companies are covered under Shops and establishments act.

 

The terminated employee may be covered under the definition of the Shops and establishments act, and can approach Inspector appointed under this Act.

 

Sensible companies issue Experience certificates (without stating any reason or making mention of termination) the work experience certificate immediately along with or after termination order is passed.

 

At times the legal notice of lawyer, demand notice from employee drills sense into the heads and matter gets resolved.

 

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copies of all documents and proceed under expert advice.

 

 

 

 

 

 
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Employee is in HO at mumbai, maharashtra and has been terminated for keeping hacking files on companies PC, which created an compliance issue. but employee has never misuse this files for self profit in companies organisation it was just for study purpose but the reason was not accepted. hence management decided to terminate the employee

 
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FIN

It is beyond understandinh why should an employee keep personal files in computer at office.

An employee who wants to access some site can do so in cyber cafe or thru computer at home, and should be in a position to afford his hobbies at his expense.

 

 

Has the compnay circulated printed version of its so called IT policy to employees.Gossip and rumour can not be rules and policies.

The computers installed in office must be Adminstrator Controlled.

 

The employee has not applied the files kept on desktop.

 

If it is a commercial establishment it should have registered under Bombay Shops and Establishments Act ( in short SE Act), and must have displayed the registration certificate near entrance/at reception. The Act is so employee friendly.

 

“^[??-?.  Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. Model Standing Orders are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)”

 

бб.Notice    of  termination  of  service.-No  employer  shall  dispense  with  the

services of an employee…………………..

Provided that,  such notice shall not be necessary where the services of such employees are dispensed with for misconduct.[Explanation.-For  the purposes of this section, "misconduct" shall include………………………..

NOTE

S.66  -  Discharge  of  an  employee  without  notice  -  Relief  of  reinstatement  and back  wages  -Termination  of  an  employee  without  notice  is  bad  in  law  and therefore workman entitled to reinstatement and continuity of service with back wages.

51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

 

Thus employee can demand and company shall have to supply experience certificate.

 

 Otherwise also company is under obligation to issue service/work experience certificate to employee that has separated by resignation/termination/retirement……………

 

---------It is not clear what is given by the employee in writing to the company.

Employee should have consulted his lawyer/trade union before submitting anything in writing.

 

In such matters trade unions are effective and know how to deal with the matter.

In Maharashtra trade unions are active.

The lawyer could have guided the employee.

 

 

The employee may approach a competent and experienced labor consultant/service lawyer, trade unions.



Attached File : 1026087001 the bombay shops establishments act.pdf downloaded 108 times
 
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IT policies were not shared on mails to each and everyone, just at the time of induction it was verbally told to each employee that these are the company IT policies should not br breached, bbut he was not the only employee who had those files, 90% of employees having their personal files on desktop, but he was the one who has given these information to compliance team,for personal files on desktop.

Compliance team taken the information and wrote to management that they had caught employee with files on companies desktop, and after 1 month they terminated the employee for such reason. In that one month employee was not given any nformation that he will be terminated.

When employee reach to HR for this case, HR told him your experience has been waste you will not get your experience letter, after requesting with HR, HR told that he will move the employee to new site, but employee is at home from last 5 days, and no HR is answering his call and there is no revert from HR side.

 
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