Hi i have total 8 years of exp in HR Generalist role and currently working with a Healthcare company as Regional Manager HR.I have joined this organization 4 months back and currently looking after the HR for two different states.
All of a sudden i was asked to leave with a months notice stating that i am not performing as per the managements expectations.Since i joined i have not been given with any proper job discreption and neither the organization has any valid proof to prove me a non performer.
Though i am not the only employee who has to undergo through this phase there are many other employees who have been asked to leave stating as non performers.
Right now i have no idea how to react to such instance and need the suggestion of you all ,whether we can stop such un etical practices.
Pls guide me on this so that the organization practising such acts should refrain themselves of doing such acts which would play with the carrers of the indivduals.
Warm Regards
From India , Secunderabad
All of a sudden i was asked to leave with a months notice stating that i am not performing as per the managements expectations.Since i joined i have not been given with any proper job discreption and neither the organization has any valid proof to prove me a non performer.
Though i am not the only employee who has to undergo through this phase there are many other employees who have been asked to leave stating as non performers.
Right now i have no idea how to react to such instance and need the suggestion of you all ,whether we can stop such un etical practices.
Pls guide me on this so that the organization practising such acts should refrain themselves of doing such acts which would play with the carrers of the indivduals.
Warm Regards
From India , Secunderabad
At the outset let me tell you that I sympathise with your predicament. However, I am rather surprised that a person with 8 years experience in HR accepted a job without a job description. I would have thought that you would have prepared your own job description after a month of joining and got it approved by the management.
Kindly give us more information about how old the organisation is and how large it is, etc.
From United Kingdom
1621Kindly give us more information about how old the organisation is and how large it is, etc.
From United Kingdom
While feeling sorry for the predicament you are facing,some queries;
""Since i joined i have not been given with any proper job discreption and neither the organization has any valid proof to prove me a non performer.""
What steps did you take to appraise the management about lack of job clarity/overlapping/definition/content. and what valid proof of achievement have you got.-like introducing some +ve changes in HR system??
When other people were asked to quit on non performance basis,what was your input towards management decision on termination?
Did you sound out your management about this kind of hurried terminations without real cause/sufficient cause?
At which level has the decision to give you notice been taken?
Are some other people in higher position to whom you can represent your case of lack of natural justice.
No warnings,no noticeable failure from your side
There is no real actionable remedy in such situations.
Legal way may not help in time as civil cases take their own sweet time to conclude.
Please speak to highest management you can access and request them to reconsider,bring out the problems and how you tried to improve things.
That is the best which I feel can be done now.
From India, Pune
""Since i joined i have not been given with any proper job discreption and neither the organization has any valid proof to prove me a non performer.""
What steps did you take to appraise the management about lack of job clarity/overlapping/definition/content. and what valid proof of achievement have you got.-like introducing some +ve changes in HR system??
When other people were asked to quit on non performance basis,what was your input towards management decision on termination?
Did you sound out your management about this kind of hurried terminations without real cause/sufficient cause?
At which level has the decision to give you notice been taken?
Are some other people in higher position to whom you can represent your case of lack of natural justice.
No warnings,no noticeable failure from your side
There is no real actionable remedy in such situations.
Legal way may not help in time as civil cases take their own sweet time to conclude.
Please speak to highest management you can access and request them to reconsider,bring out the problems and how you tried to improve things.
That is the best which I feel can be done now.
From India, Pune
Your place of work seems to be in Andhra Pradesh and thus governed by Andhra Pradesh Shops and Establishment Act, 1988 and Rules of 1990 framed thereunder. As you said the management is terminating various employees for non-performance and remedy, if any. The remedy may be as follows. Coming to merits, an employee even during probation, cannot be arbitrarily thrown out. Some memorandums/letters should have to be issued by management to achieve the targets set out. In case of confirmed employees throwing out on allegations of non-performace without chargesheet is not valid. Under rule 20 of the Rules of 1990 no employee shall be terminated for misconduct without conducting inquiry precribed under the rule. For a confirmed employee at least, the said rule bars employer to terminate without inquiry. But in your case also, the rule may be said to be applicable because rule states "no employee shall be terminated...." Thus filing of first appeal under rule 21 before first appellate authority may be exercised. If your termination letter prima facie shows any stigmatic language, it is covered under rule 20. Mind it there is limitation period prescribed therein. If the management does not pay a heed to you fast, then resort to it.
Thanks
Sushil
From India, New Delhi
Thanks
Sushil
From India, New Delhi
In continuation of above, it may be pointed out that the Andhra High Court held in V. Gopalakrishnaiah vs District Co-Operative Central ... on 10 September, 1998 that section 47 of the AP Act of 1988, which deals with the conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement etc., and payment of subsistence allowance for the period of suspension, entitles an employee to remain in service upto superannuation age of 60 years:
Section 47 of the Act, 1988 deals with the conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement etc., and payment of subsistence allowance for the period of suspension. Section 47(3) of the Act, 1988 reads as follows:
(3) Every employee who has put in a continuous service of not less than one year shall be eligible for service compensation amounting to fifteen days average wages for each year of continuous employment, (i) on voluntary cessation of his work after completion of 60 years of age; (ii) on his resignation, or (iii) on physical or mental infirmity duly certified by a Registered Medical Practitioner or (iv) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of one year shall not be necessary where the termination of the employment of an employee is due to death or disablement;
Provided further that in case of death of an employee service compensation payable to him shall be paid to his nominee or if no nomination has been made to his legal heir."
In earlier judgment of the HC in the case of KODANDAM VS. WANAPARTHY CO OPERATIVE MARK SOCIETY, LAWS(APH)-1981-3-20
High Court Of Andhra Pradesh , Decided on March 19,1981 it was held in respect of 1966 Act:
"IT may, at this stage, be stated that if the provisions of the Andhra Pradesh Shops and Establishments Act, 1966 apply to the petitioners, Section 40 of that Act prohibits the termination of the services of any employee except in accordance with the conditions laid down therein. Section 40 of the Andbra Pradesh Shops and Establishments Act, 1966 reads as fellows : "40. Conditions for terminating the services of an employee and payment of gratuity :-(1) No employer shall without a reasonable cause and except for misconduct terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month's notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than five years, a gratuity amounting to fifteen days' average wages for each year of continuous employment, Explanation : For the purpose of this sub-section,----- (a) the expression"'wages' does not include overtime wages; (b) the expression 'average wages' means the daily average of wages for the days an employee actually worked during the thirty days immediately preceding the date of termination of service: (c) an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months, if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee ; (d) where the total continuous employment is for a fraction of a year or extends over a fraction of a year in addition to one or more completed years of continuous employment, such fraction, if it is not less than a half year shall be counted as a year of continuous employment in calculating the total number of years for which the gratuity is to be given, (2) Where a gratuity is payable under sub-section (1) to an employee, he shall be entitled to receive bis wages from the date of termination of his service until the date on which the gratuity so payable is actually paid subject to a maximum of wages for two months. (3) An employee, who has completed ihe age of sixty years or who is physically or mentally unfit having been so declared by a medical certificate, or who wants to retire on medical grounds or to resign his service, may give up his employment after giving to his employer notice of at least one month in the ease of an employee of sixty years of age, and fifteen days in any other case; and every such employee and the dependent of an employee who dies while in service, shall be entitled to receive a gratuity as provided in subsection (1). He shall be entitled to receive the wages from the date of giving up the employment until the date on which the gratuity so payable is actually paid, subject to a maximum of wages for two months. (4) The services of an employee shall not be terminated for misconduct except, for such acts or omissions and in such manner, as may be prescribed. Explanation : For the purpose of this section, the term, 'employee' shall include part-time employee also", The petitioners admittedly have been in employment for a continuous period of not less than six months, They have not been given at least one month's notice in writing or wages in lieu thereof nor have they been paid gratuity amounting to fifteen days average wages for each year of continuous employment as laid down in Section 40 of the Act. There can be little doubt that if Section 40 of the Act applies, the orders of termination impugned in this writ petition must be quashed"
Similarly in the Explanation clause of section 47 of the 1988 Act, an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months, if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee. It appears that queriest has rendered more than 4 months service and thus shall be deemed to have been in continuous service of not less than six months. He is entitled to continue in service till superannuation age of 60 years. He could have been terminated only after conducting inquiry as per rule 20 of the 1990 rules.
Thanks
Sushil
From India, New Delhi
Section 47 of the Act, 1988 deals with the conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement etc., and payment of subsistence allowance for the period of suspension. Section 47(3) of the Act, 1988 reads as follows:
(3) Every employee who has put in a continuous service of not less than one year shall be eligible for service compensation amounting to fifteen days average wages for each year of continuous employment, (i) on voluntary cessation of his work after completion of 60 years of age; (ii) on his resignation, or (iii) on physical or mental infirmity duly certified by a Registered Medical Practitioner or (iv) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of one year shall not be necessary where the termination of the employment of an employee is due to death or disablement;
Provided further that in case of death of an employee service compensation payable to him shall be paid to his nominee or if no nomination has been made to his legal heir."
In earlier judgment of the HC in the case of KODANDAM VS. WANAPARTHY CO OPERATIVE MARK SOCIETY, LAWS(APH)-1981-3-20
High Court Of Andhra Pradesh , Decided on March 19,1981 it was held in respect of 1966 Act:
"IT may, at this stage, be stated that if the provisions of the Andhra Pradesh Shops and Establishments Act, 1966 apply to the petitioners, Section 40 of that Act prohibits the termination of the services of any employee except in accordance with the conditions laid down therein. Section 40 of the Andbra Pradesh Shops and Establishments Act, 1966 reads as fellows : "40. Conditions for terminating the services of an employee and payment of gratuity :-(1) No employer shall without a reasonable cause and except for misconduct terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month's notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than five years, a gratuity amounting to fifteen days' average wages for each year of continuous employment, Explanation : For the purpose of this sub-section,----- (a) the expression"'wages' does not include overtime wages; (b) the expression 'average wages' means the daily average of wages for the days an employee actually worked during the thirty days immediately preceding the date of termination of service: (c) an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months, if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee ; (d) where the total continuous employment is for a fraction of a year or extends over a fraction of a year in addition to one or more completed years of continuous employment, such fraction, if it is not less than a half year shall be counted as a year of continuous employment in calculating the total number of years for which the gratuity is to be given, (2) Where a gratuity is payable under sub-section (1) to an employee, he shall be entitled to receive bis wages from the date of termination of his service until the date on which the gratuity so payable is actually paid subject to a maximum of wages for two months. (3) An employee, who has completed ihe age of sixty years or who is physically or mentally unfit having been so declared by a medical certificate, or who wants to retire on medical grounds or to resign his service, may give up his employment after giving to his employer notice of at least one month in the ease of an employee of sixty years of age, and fifteen days in any other case; and every such employee and the dependent of an employee who dies while in service, shall be entitled to receive a gratuity as provided in subsection (1). He shall be entitled to receive the wages from the date of giving up the employment until the date on which the gratuity so payable is actually paid, subject to a maximum of wages for two months. (4) The services of an employee shall not be terminated for misconduct except, for such acts or omissions and in such manner, as may be prescribed. Explanation : For the purpose of this section, the term, 'employee' shall include part-time employee also", The petitioners admittedly have been in employment for a continuous period of not less than six months, They have not been given at least one month's notice in writing or wages in lieu thereof nor have they been paid gratuity amounting to fifteen days average wages for each year of continuous employment as laid down in Section 40 of the Act. There can be little doubt that if Section 40 of the Act applies, the orders of termination impugned in this writ petition must be quashed"
Similarly in the Explanation clause of section 47 of the 1988 Act, an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months, if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee. It appears that queriest has rendered more than 4 months service and thus shall be deemed to have been in continuous service of not less than six months. He is entitled to continue in service till superannuation age of 60 years. He could have been terminated only after conducting inquiry as per rule 20 of the 1990 rules.
Thanks
Sushil
From India, New Delhi
Dear Govind,
You as a Manager do not have any course of action to fight against Management except through a civil case, which might take a longer time to resolve. As you said, there are others too who have been asked to leave....please check if one of those terminated employees fall within the 'workmen' category?. If yes, you can use him to file case in labour court.
Regards,
Murali
From India, Hyderabad
You as a Manager do not have any course of action to fight against Management except through a civil case, which might take a longer time to resolve. As you said, there are others too who have been asked to leave....please check if one of those terminated employees fall within the 'workmen' category?. If yes, you can use him to file case in labour court.
Regards,
Murali
From India, Hyderabad
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