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Nishant Kumar (ZSM)     06 July 2013

Termination from employment without any notice

Dear Sir, I have been working with a pvt. ltd. company of sunpower, located in lucknow as a Zonal Sales Manager. I have joined ther on 20th May'13 & appointed for Bihar Zone. The company has given me an Offer Letter on my personal mail but that was in a form of mail rather than any signed & stamped copy. They haven't given me any Appointment letter till date. In their offer it was written that I'll be on probation period of one month & notice period is also of one month. Further, after deploying me on Patna location, they didn't have any office there so I was working on field & my job profile was to manage a team of ASM & SOs. I was working sincerely but there was some issue in their price list as compare to the competitors. Anyhow, they had issues with my performance & they without giving any prior notice deleted my official email id on the late evening of July 5, 2013. They were also not responding my calls. Today they have sent me a mail on my personal id with subject "Relieving from roles and responsibilities wef 1/07/2013". the mail content is "This to bring into your notice that During the Board of directors meeting for evaluation of employees performance, are regretful to notify that your services have been terminated and you have been relived from your all duties which was given from the company with 1ST July’2013 due to your poor performance, it’s the management decision to terminate emplacement, whose performance is poor for the precedent two months approximately and the lifted chance involves your same in if. Your performance shows no improvement for the past two months approximately and there have been no purchase orders from your side for the last two months approximately. Being a GM and DGM- Sales, this is not expected from you. Thus you are being terminated/relived from your service with 1st July’2013. Your full and final settlement will be settled within a month time. Thank you for your services rendered for the organization and we wish you good luck for all your future Endeavour’s ." Please note that they haven't given me any notice period to serve nor they are ready to give any salary in lieu of my notice period. Apart from this, my expenses since my DOJ haven’t been cleared till date. Also, my first month salary they have given me as cash in hand. Sir, after leaving a reputed company, I hadn't imagine this kind of unprofessional action from an employer. I'm feeling cheated by the company. Request you to please give your valuable inputs & guidance. -Best Regards, Nishant Kumar



Learning

 4 Replies

Kumar Doab (FIN)     06 July 2013

What is your objective: to contest the termination as bad order and to recall it or to claim damages or to claim unpaid wages/reimbursements/notice pay…………..

Since no appointment order has been issued to you and none is signed as accepted by you:

- the offer letter (digital copy) may be referred to…………

-there is no inclusion and exclusion or no exclusive jurisdiction of courts…………accepted by mutual consent.

You may submit your permanent address/ address mentioned in job application to company and claim that this is your address since beginning……………….and company can contact you at this address only.

Has the company stated your HQ in the offer letter? If no you may emphasize that your HQ was………………your permanent address or Lucknow.

Approach a competent and experienced labor consultant/service lawyer and your lawyer may opine that you may succeed to agitate in courts at your permanent address.

 

Redg. office of the establishment is located in which state?

You have posted that:

-------“I'll be on probation period of one month & notice period is also of one month.

If this is the precise language (and there is none that until confirmed in writing) you may construe that after one month your services were confirmed.

Although it is not added in specific that this one month notice is applicable to employer also, you may construe that it is applicable to both employee and employer.

You should be eligible for the notice pay.

------“but there was some issue in their price list as compare to the competitors.’

What was precisely this issue in price list?

Assuming that price was higher than competition, did any feature of the product offer benefits that would justify the higher price?

Have you ever pointed it out in writing or in office to superiors, or any prospective client has pointed it out to the company…………..? Do you any written record or can you manage to obtain………….????

Has any quotation etc been sent to prospective clients?

Do you have competitor’s data..??

If this is the reason for efforts/queries/calls/offers not getting converted into sales…………?

If this is the reason this is beyond the control of employee(s)……..?

Was the company already operational in territory assigned to you and was there any old employee in the team………………..or any experienced person who has already been into the same trade…???

 Were you in the same trade before joining this establishment?

Did the company conduct any training for you and the team………………………….and did the company take any step to correct the issues in price list or to convince the customers?

Did the company depute anyone to the territory to address the issues?

-------“Anyhow, they had issues with my performance & they without giving any prior notice deleted my official email id on the late evening of July 5, 2013. “

Did the company post any stinkers, memo, show cause notice etc, verbal challenge, PIP etc.. …….before issuing order of termination? 

 

------“They were also not responding my calls. “

Did you stop working and posting the reports and marking the attendance?

Did you communicate in writing?

 

-------“Today they have sent me a mail on my personal id with subject "Relieving from roles and responsibilities wef 1/07/2013".’

This is backdated. You may take it w.e.f today………………..

-----“your services have been terminated and you have been relived from your all duties which was given from the company with 1ST July’2013 due to your poor performance, ‘

Reason for the Termination is stated: poor performance.

 

 ------“it’s the management decision to terminate emplacement, whose performance is poor for the precedent two months approximately “

Has the company ever communicated/circulated this policy of ……………2 months?

Is such a policy kept in knowledge domain of employee e.g. at employee web portal, HR policy hand book, PIP policy………………etc?

2 months is too short a period (from DOJ) to assess finally on performance……………

Is the company facing similar sales situation, or reason for such sales  i.e. uniform/universal across all offices/region/zone/pan India?

If yes one individual should not be targeted ………….

 

-------“Your full and final settlement will be settled within a month time. ‘

The time for payment of FNF dues is usual pay day.

Is it stated in any of the policy of the company e.g. exit policy, severance policy that time as per company’s policy is 1 month?

------“Thank you for your services rendered for the organization ‘

You may construe that company has thankfully acknowledged services you have rendered to the company.

 

-------“Apart from this, my expenses since my DOJ haven’t been cleared till date. “

Did the company provide any imprested cash and did you demand it?

Did the company communicate the eligibility for the expenses say field expenses…?

Have you submitted expense statement under acknowledgment and has the company acknowledged the receipt?

You may submit list and copies of all payables by company to you and may not accept the FNF statement, if it is not correct…………..Rather you may decline to accept in writing due to errors in it…………

------“Also, my first month salary they have given me as cash in hand. ‘

Did you sign any voucher or issue any acknowledgment? Is there any evidence of payment in cash?

 

Does this establishment has its certified standing orders and has it extended these to your designation?

Does the Industrial Employment Standing Orders Act apply to your establishment?

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

Your lawyer may ask you a set of structured questions and can opine that you would be  covered in the definition of ‘Workman’ as in ID Act or ‘Employee’ as in Shops and Establishments Act………………………….or not?

If you are not covered the limitation period in your case may be 3 years, and your lawyer may advise that forum for you to agitate is civil court.

 

Payment of wages Act (applicable to all employees drawing wages up to Rs.18000/pm) 
2. Definitions.: 3*[(vi) "wages" means all remuneration………………..
(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;

 

Submit a final representation addressed to the good offices of Appointing Authority, MD, Chairman and narrate all payables by company to you and all representations made by you ( mention names, designation, dept, name of company, address, phone numbers, email id, date of call/email, brief minutes of discussion………..) highlight that you have rendered unblemished services, and call upon good offices to supply you the salary slip for al months, PF number, PF a/c slip, correct FNF statement, Form 16 as per correct FNF statement,   payment by bank DD only thru redg. post only. You may mention that a postage prepaid ( as purchased from PO) self addressed envelope is enclosed for sending the DD by redg. post to you, so as to reach you in say…………….. days. You may clarify that no handover of charge/company property was required and demanded form you, and you have handed over the material (enclose list) to Mr/Ms…………….under acknowledgment ( attach copy).

 

Let your lawyer’s opinion be final on all points discussed in this thread.

There are many threads on similar queries which you may find relevant and useful.

e.g;           

 

https://www.lawyersclubindia.com/forum/Regarding-pending-salary-pf-83511.asp#.UdFFcTuAqWM

 

https://www.lawyersclubindia.com/forum/Employer-cheated-me-on-f-f-settlement-need-advice-83024.asp#.Uc67HTuAqWM

 

https://www.lawyersclubindia.com/forum/Salsry-on-hold-83258.asp#.Uc67STuAqWM

https://www.lawyersclubindia.com/forum/Salary-not-payed-82310.asp#.UboA-dhVMgs

https://www.lawyersclubindia.com/forum/Salary-not-payed-82310.asp#.Ubc5P_lVPxp

https://www.lawyersclubindia.com/forum/Employer-not-paying-salary--82331.asp#.Ubc5qflVPxo

https://www.lawyersclubindia.com/forum/Non-payment-of-salary-81896.asp#.UbAThNKAqWM

https://www.lawyersclubindia.com/forum/Full-and-final-settlement-not-paid--76066.asp#.UbAUUNKAqWM

https://www.lawyersclubindia.com/forum/Non-payment-of-full-final-sattelment-81866.asp#.UbAUwNKAqWM

 

https://www.lawyersclubindia.com/forum/Neither-resigned-nor-terminated-salary-unpaid--81683.asp#.UbAVCNKAqWM

https://www.lawyersclubindia.com/forum/Wages-not-paid-by-employer-81628.asp#.UbAVHdKAqWM

 

 

 

 

1 Like

Nishant Kumar (ZSM)     08 July 2013

Dear Sir,

Thanks a lot to responding in such a short time.

I appreciate your observation on my each & every points, I have mentioned in my query.

I have mentioned few more points as per your raised questions. Request you to please go thru once;

1) Sir, my main objective is to claim unpaid wages/reimbursements/notice pay as they are only ready to pay my salary (Since 1st June to 30th June) in my full & Final settlement but it has confirmed only verbally not in writing.

2) My offer letter that I have received thru mail was as below (I’m hiding the company’s Name & Address as this is a public post);

“08th April, 2013

Name: Mr. Nishant Kumar

Address(My permanent address of Bihar)

Dear Mr. Nishant

We are pleased to offer you the position of Zonal Sales Manager (Patna) at (Company Name). You are requested to join us on May 20th, 2013. Your total Gross Salary will be Rs. (in fig.)+ Incentive, p.a. subject to various deductions as per company and government policy. From the date of your joining, As per our organization’s policy, the probation period applicable to you shall be of one month. During probation, the notice required for resignation is one month on either side. Your appointment is subjected to satisfactory reference checks and clearance from any secrecy service agreements that you may have executed which could have a bearing on your working with us. You shall not either during or after your training period with the company disclose any confidential information of any descripttion including any information or affairs of the company. Therefore you will be required to sign the company secrecy and non disclosure agreement. You will presently be posted at Patna, India and directly reporting to Mr. (Name of VP), (V.P. Sales and Marketing) (Company Name). However, you may be transferred at any other location or office across India. You may be required to undertake travel from time to time to other locations outside your place for business purpose. You shall abide by the rules and regulations of the company failing to do so would be subjected to disciplinary actions. This offer letter is based on the information provided by you during the interview you had with us. If in future, it comes to light that any of this information provided by you is incorrect or any relevant information has been withheld, then your employment is liable to be terminated without notice. If you do not confirm the acceptance within 7 days, (Company Name) has the right to withdraw the offer. We welcome you to our organization and look forward to your contribution towards the growth of the organization and yourself. On the date of joining, please bring the following documents for verification/ submission:- 1. Original and copies of educational certificates and mark sheets. 2. Original and copy of your ID and residence proof. 3. Last month Salary Slip 4. Reference-Local 5. Five passport size photographs. 6. Relieving Letter (Last Employer) Kindly accept and return us reply the copy of this offer letter as your acceptance”

3) Redg. office of the establishment is located in Uttar Pradesh & it has been written in my offer letter (Mail).

4) Company has recently started its operations in the particular territory, but I was working in a different industry & location before joining this company. Also, company has provided me one day induction training & product training too at the time of my joining.

5) I have communicated so many times to my VP-Sales to work upon price list but he was more interested in sales rather than do any SWOT analysis of the company. Though, I have few clients in pipeline & were expected to convert with a day or two.

6) The company neither deputed anyone to address the issue nor they have given me any kind of prior notice in written.

7) Although company has send all employees a mail that the salary of July wouldn’t be processed because of the DCR report hasn’t been received from employees (I was use to move on one to another remote location. Hence, it wasn’t feasible to find a computer with net connection all the time & company hasn’t provided me any facility for sending mail, neither laptop nor Internet connection modem). But the company hasn’t posted any stinkers, memo, and show cause notice in writing before issuing order of termination.

8) There were not any medium to make attendance on system. I have been working since 5th July (until I received termination mail).

9) No, company hasn’t circulated any policy regarding termination on poor performance of 2 months. Neither any HR Policy has been posted on company portal not they have given me any HR Policy Handbook apart from a Travel Policy of the company.

10) Eligibility for expense was in line with company’s Travel Policy & that was subject to the approval of Reporting Authority. The expenses were supposed to send to the reporting authority after clearance of the salary. Since, it was my 1st month (joined in May but no expense has been claimed), I was waiting for my salary 1st.

11) Salary of May given to me was in cash (when my VP has visited to my territory) without any signature on any kind of Vouchers.

 

Request you to please give youe valuable inputs.

Also, I would like to thank you for your advice & concern on my issue.

-Deep Regards,

Nishant Kumar

Kumar Doab (FIN)     09 July 2013

1) Wages for each day employee has worked, has to be paid. Record their verbal confirmations. 

It is your call to accept or reject the offer of the company.

If you accept you shall get the cahs in hand and may be all servicd related docs without any confrontation and litigation.................

2) Notice period is applicable during probation period also. Notice pay is to be tendered by company.

Company has stated that employee shall have to travel for company’s work hence travel expenses, allowances have to be paid.

You may submit copy of expense statement of all months from DOJ, as per travel policy and claim.

3) If it was negotiated/agreed upon relocation expenses may be claimed.

7) If there is procedure to submit DCR and DCR be treated as attendance then DCR is to be submitted. For/format of DCR, mode of submission is to be decided by company. If it is email then employee has to send email, if it is by post employee may send by post.

You may demand salary slips of all months and all other docs………..

You may submit copies, and get the attendance regularized from reporting authority.

If you are not able to handle the matter on your own, you may approach your lawyer.

 

 

 

1 Like

Adv k . mahesh (advocate)     10 July 2013

already company had relieved you from the services try to get the one month salary and then fight for the remaining amount if possible take what ever correspondence in writing with acknowledgement 

1 Like

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