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Muthukumar (Software test engineer)     25 January 2013

Termination based on performance

Hello,

   I was working in a private limited company for the past 1.5 years. I was given a notice that my performance is not good and i've to improve. and is showed good improvements and they accepted and after a month again i was told tat my performance is poor and late coming to office and they terminated me suddenly. They didnt provide me with any compnesation. Atleast i need some financial support from the company until i find another job. If i want to leave the job suddenly, I've to pay a gross salary of 3 months and leave. But if they terminate me suddnely, they won't pay anything ?? Please help me out. .



Learning

 19 Replies

Sudhir Kumar, Advocate (Advocate)     25 January 2013

what were terms of employment

Muthukumar (Software test engineer)     25 January 2013

Terms of employment means ?? I didnt understand.


(Guest)

@Querist,

 

Do the 'Terms and Conditions' of the company describe a term 'Notice period'?

 

If yes,and you,without being given any notice from the company' relieved immediately,then following steps should be taken sequence-wise-

 

1. Talk to higher authority in your company.

 

2.Engage a local advocate.(If first doesn't work)

 

3.Go to labor court in your jurisdiction.


 

Note-This reply should be taken as per the declaration given in my profile page.

 

Thanks,

Regards,

Muthukumar (Software test engineer)     25 January 2013

Hi Sumitra kumar,

 

    In the offer letter they have mentioned a notice period of 3 months for the employee. If the employee wants to leave immediately without serving the notice period of 3 months , then the employee has to pay a gross salary of 3 months and leave. But is it applicable for the employer also ? i.e if they terminate immediately then they have to pay any compensation ??

 

Thanks,

Muthu


(Guest)

@Querist,

 

If 3 months notice is required,then legally they can't force you to resign immediately. If they can't terminate you,there is no question of compensating you.

 

If your comapany and you both mutually agree that you will resign immediately in lieu of some compensation,it's altogether a different matter.

 

If the company still disagree, all your option of getting justice is open.

 

 

Thank you

 

Regards

 

Muthukumar (Software test engineer)     25 January 2013

Thanks a lot Sumitra kumar :) . One Last quetion, 

"if 3 months notice is required,then legally they can't force you to resign immediately." Is this applicable even if the employee's performance is poor ??

Akshay Sahni (Founder/Partner)     25 January 2013

Dear Sir,

Get a Legal Notice issued to your employer based on the terms and conditions mentioned in the employment contract.

We would be able to help you, for any further queries please visit www.indialawhelp.com

We have offices in Delhi, Noida, Mumbai, Pune, Hyderabad, Dhanbaad, Allahabad

Regards

Akshay Sahni

Advocate

09891982832


(Guest)

@Querist,

 

What you asked in your last question doesn't mean your gross negligence will be tolerated for 3 months from the date of notice. Because generally such disputes occurs,and when you opt to go for justice on such ground, it's higly likely,your petition to be dismissed.

 

Advice-Try to improve yourself. Assure your employer to prove your worth.

 

Thanks,

Regards,

Sudhir Kumar, Advocate (Advocate)     25 January 2013

contact nearest available lawyer and show him the papers. He only will be able to understand what was term of service.

Kumar Doab (FIN)     27 January 2013

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

Has your company asked you to trade your order of termination with resignation with immediate effect {and forget about notice pay from company}?

If you trade your resignation with immediate effect with termination Order Company may adjust notice pay in FNF statement and square off your dues and may even claim the recovery from you and deny FNF and may adverse comments during reference check.

 If you have approached to call back order of termination submit a written representation in writing under acknowledgment on record with a copy to you and obtain relieving letter with good and favorable comments { avoid one without any comments} {obtain hard copy on letter head bearing name/designation of competent employee, original seal, signature and a soft copy fro official email of the company to your email id}  and ensure that adverse remarks from personnel file are erased/removed by HR of your company.

You may tread carefully.

You may show the standing orders of the company, offer letter, appointment letter, notice to improve performance {probably a PIP programme, if so complete PIP policy}, target vs performance criteria document, performance data { self, branch, region/cluster/zone/pan India which usually single MIS file}, appraisal sheets of all appraisals till date, letter/email accepting/ appreciating/acknowledging improvement in performance, show cause notice, attendance record preferably including clocked hours { if entry is by matrix card this can be obtained or signature with time in security register or online attendance recorder}, notice/email/letter for coming late to office and your reply, HR policy, employee rule book, severance policy, termination order, to a competent and experienced labor consultant/service lawyer, give inputs in person and proceed under expert advice of your lawyer.

If any data, record, document is not with you the same can be requested from company by you in writing under acknowledgment. Company is custodian of records. You may also submit a gentle request in writing under acknowledgment addressed to good offices of your appointing authority, MD, Chairman, Company Secretary to allow you to examine your personnel file maintained at HO of the company.

You may not accept FNF statement and may write that you have not accepted and have received FNF statement and dues sent by company under protest.

You have worked for 1.5 years.

You have posted that:

--“I was working in a private limited company for the past 1.5 years.”

It is believed your services were confirmed in writing. Pls confirm.

You may show the letter of confirmation of service to your lawyer. Service conditions post confirmation should be looked into.

--“ I was given a notice that my performance is not good and i've to improve.”

Has the company communicated it in writing?

“and is showed good improvements”

Do you have it in writing?

 “and they accepted”

Do you have it in writing?

 

“ and after a month again i was told tat my performance is poor”

Was it communicated it in writing?

 

Does your company follow PIP and do you have published policy. If yes and you do not have it obtain it from some of the colleague.

--“ and late coming to office”

Has the company issue any, memo, stinker etc in writing? Did you reply to it?

If the employee has been subjected to extended hours of working he should be allowed to come late. Good companies follow such practice and it is not without any reason. It avoids hazards related to safety, health, work environment etc.

What was the exigency you have included in your expression of explanation to company?

Is late coming expressed under Misconduct in standing orders, HR policy, and appointment letter of the company?

 Does your company pay OT for extended hours of working?

Has your company circulated its published policy on category of “Exempt” and “Non Exempt” employees for OT?

You are kept in which category.

You need to find and prove misconducts on part of line management, HR and company. Does it exploit the employees?

--” they terminated me suddenly.”

What is the reason mentioned in termination order?

If it is without any reason and no opportunity has been granted to you, although Company may plead that it was termination simplicitor your lawyer would know how to tackle it. If no charge is leveled in termination Order Company should have tendered notice pay. 

If the company pleads you were underperforming, late comer your lawyer {thus you} may succeed to defend.

Even if it is termination letter without any charge the termination can adversely affect your future employment.

Majority of the employers find termination as reason for separation: Repelling.

If you want the termination orders should be called back your lawyer would brief on the merits in your case. You may take a call based on merits.

Has the performance been poor of majority of the employees in your branch, dept, office, region, zone, pan India? What is your rank?

What are reasons for your performance being low?

If your performance has been low for say 2 months you should have assured your line managers to improve and if reasons were out of your control you could have looked for employment else where.

You should have avoided termination.

 

--“ They didnt provide me with any compnesation.”

Notice pay should have been paid by the company.

The notice period/pay should be same for both employer/employee.

The various clauses mentioned on termination in standing orders and appointment letter should be looked into.

Company might have included in appointment letter that no notice pay for termination shall be applicable in case the cause for termination by employer is misconduct, poor performance. However the company should justify and provide opportunity of natural justice to employee. Every action and statement of the company should stand the test of law.

Companies, line management, HR bank on the assumptions that majority of the employees are ill informed, shall write a few mails then give up, won’t approach a lawyer and union and later courts of law. However in case of

Or company might have believed that it can convince you that you were not a workman and cross reference to clauses in appointment letter is not possible.

This may not work.

The conditions in the appointment letter crafted by some consultant of the company as per specifications given by the company may be termed arbitrary, void, unconscionable, bad, unlawful, illegal,…  in violation of standing orders….in violation of provisions of SE Act of the state applicable to the company.

--“ i.e if they terminate immediately then they have to pay any compensation ??”

Service conditions pertaining to lay off/retrenchment should be looked into.

The min. amount equivalent to notice pay should have been paid.

 

The state of Karnataka has ended blanket exemption granted to IT companies from Standing Orders and within 6 months certified standing orders should have been framed.

If certified stranding orders are not framed model standing orders should apply.

You may go thru clause: 4.           Publication of working time

8.                 Attendance and late coming

13.              Termination of employment: .--(1), (2)

(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

(3) (f)      habitual late attendance,

17.  Liability of 17[employer].--The [1][employer] of the establishment shall personally be held responsible for the proper and faithful observance of the standing orders.

18.          Exhibition of standing orders

 

IT companies are covered under SE Act e.g.

SE Act Karnataka: 6A, 8, 11, 18, 21, 29, 34, 39

If the company does not allow examining personnel file the Inspector under SE act, Payment of Wages Act, can call for records. You may get copies under RTI act from Inspector.

The appointment letter may be declared in violation of provisions of the SE Act applicable to the state.

Payment of Wages Act: 2. Definitions. 3{vi} and

(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;

3, 9, 13A,

 



[1] Subs by ibid


Attached File : 616841751 model%20standing%20orders.doc, 616841751 karnataka shops and commercial establishment act.pdf, 616841751 karntaka now applicability%20of%20standing%20order%20to%20it%20industries.doc downloaded: 76 times

Kumar Doab (FIN)     27 January 2013

Attached;


Attached File : 616841751 payment of wages act 1936.pdf downloaded: 46 times

Muthukumar (Software test engineer)     28 January 2013

Thank you so much for your time and advice MR.Doab kumar. I've all the communications between me and the company in written(Email).

Kumar Doab (FIN)     28 January 2013

You may show all docs suggested in the post and emails to your lawyer and give inputs in person, and proceed under expert advice of your lawyer.

If suitable to you, you may attach all docs and emails etc in this thread.

You may erase the names etc to maintain the confidentiality.

Manish Kumar (General Counsel and Company Secretary)     28 January 2013

Hi, You need to refer your appointment contract, which must have specifically written "in case of of negligence the Company may terminate your service without assigning any notice or salary in lieu thereof" if that is is circumstances you may still serve on a legal notice to show cause what neglignce has been reported and you can bargain accordingly.


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