- It Life Fun or Problems – Series 2 – PART 1
- “Clean Exit” – Sacred Cow of HR and Employees
- “Company has Right to Terminate Employment any Time” – True or False?
- Compliance Violation and Termination – Facts to Know
- Nazi Gas Chambers and HR Exit Process
- What Legal Rights I have as an IT Employee?
- How Much it Costs to Approach Labour Department?- Zero!
- Fixed Term Employment : A Ticking Time Bomb
- HR Targetting Pregnant Employees is Illegal and Inhuman
Shyam Sundar who is a part of NDLF IT Employees Wing is having around 20 years of experience in information technology. He wrote an article series on “IT employees Life Fun or Problems” to create awareness about various issues faced by IT employees. This write up is sixth part of Series 2
We have discussed in detail about the various parties involved in appraisal discussion and their roles. Next, we will see how an IT employee can protect themselves from layoffs.
The most important thing to remember here is HR officers and managers have no power or permission to terminate the employee. Unless instruction comes from management, you will not receive termination letter. But if management decided to go for termination, then HR officer will not request you to submit self-resignation; they will close the discussion in 10 minutes by issuing termination letter. So in either case, first and fore most thing an employee has to do is to refuse to resign and not sign any documents or submit self- resignation in the system.
The next step is to file a complaint in labor office in the locality where your office is located. Currently there are many employees who submitted complaint in labor office across all major regions and against all IT companies who are trying to lay off people. So you can get guidance from fellow IT employees who already submit petition on labor office to help you in this regard. In the meantime, fight within your organization and raise grievances through all possible ways to change your rating. The employee has to raise grievance both within and outside the organization to get help during this period
I will explain the process of legal fight in simple question and answer format. These questions are the most commonly asked queries; I hope from the answers to these questions, most of the legal clarifications can be obtained.
What is the prevailing laws that protect employees from termination? Is there any law specific to information technology employees?
Employees are protected under Industrial dispute act that is formulated in 1947. This law covers all workmen who work as part of Industry. There is no specific law pertaining to IT industry and Industrial Disputes Act is applicable for IT employees also.
As per IDA, definition of work man is “a workman means any person (including an apprentice) employed in any industry to do any 1.skilled or unskilled 2.manual 3.supervisory 4.technical 5.clerical or operational.”
As IT employees, we require software skills and technical skills to perform end to end operations and definition of workman is applicable to IT employees.
What happens if management denies employees to be considered as workman? I hear that supervisors and managers are not considered as workman. If this is the case, are senior employees protected under IDA?
Legal disputes raised by IT employees in a sector that has several million IT employees are very less. The main reason for this is the myth created by IT companies that hire and fire is acceptable in IT industry.
The only case which got the judgment so far is Ramesha VS HCL in Chennai Labour Court. Here HCL denied Ramesha plea and argued that IT industry does not come under IDA and Ramesha is a supervisor and has employees reporting to him. After hearing both parties, the labour court dismissed the denial request of HCL management. The judges ruled that Ramesha work is skilled and technical and he will be coming under workman category. As part of this historical judgment, labour court ordered HCL to reinstate Ramesha.
As I mentioned earlier, IDA act is formulated in 1947. As per this act, salary slab is defined for workman. As per this act, employee getting less than Rs 3000 salary only will be considered as workman. But in the current scenario, minimum wages obtained by any employee will be above Rs 10000. So even company denies workman representation, it is the court to decide if an employee falls under workman or not. So if more employees take legal fight in the coming years, this will put hard stop for managements to terminate employees in the name of supervisor
Is supervisor is not covered under any protection for their jobs? What is the definition of supervisor?
1) Industrial Disputes Act
2) Shops and Establishments Act
Generally supervisor is a top executive in the company who perform the following actions:
1) Recruit new employees
2) Make policy changes
3) Cheque signing authorities
4) Decision making authority in the company level
But most of the IT employees, even they have more than 500 employees report to them, will have the following activities performed as part of their end to day operations:
1) Manage client and address client queries
2) Own overall delivery of the project including project planning, execution activities and monitor team activities
All the above job require skills and technical knowledge, so this comes under definition of workman. Also it is not that if employee is covered under shop and establishment act, then company can do hire and fire. In some cases, employee will be working for many years in the same company and he progressed from developer to supervisor. So company can claim in most cases that senior employees supervisors and doe not come under IDA.
But it is the court who has to decide under which law employee is protected. In Ramesha case also it was argued that he comes under supervisor category but court ruled that he is a workman. So definitely company cannot terminate only as reason being supervisor and if they did that, employee has every right to defend themselves in the court.
I am working with famous IT Company. I was given lower rating and my company is asking many of the employees who is rated lower to submit resignation on their own. I am very much worried I may get a call to submit my resignation. How I can safeguard my job?
If any employee feel their job is at risk, they can submit petition in the nearby labor office. They can file petition under section 2A of IDA or 2K of IDA. If affected person is individual, they have to file 2A. If affected person is group of more than 7 employees, they can file under 2K. The affected employees can seek help from unions available in the respective states. Union will help in taking legal fights for the employee. If you file with help of unions, we can file 2K
What will happen if I file case under section 2A or 2K?
If any employees filed 2A or 2K petition, the condition of the services of the employee has to be remain unchanged during pendency of the proceedings. As per section 33, if employee filed 2A or 2K:
- Company should not alter to the prejudice of the workmen concerned in the dispute, the condition of services applicable to them immediately before the commencement of such proceedings
- If company reports misconduct connect with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
- for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
In simple terms, if employee raised 2A or 2K petition, the company is not allowed to do alter any of employee’s service terms. For example, if employee is project engineer with Band B and drawing salary of Rs 45,000 per month and working in Bangalore location, company is not allowed to change any of the parameters without getting consent from the labor officer. The company has to seek permission for any action against the employee and termination is stopped in this case
I hope this question and answer session is useful and interesting. The intention of writing this article in Q&A pattern is these are the most common questions I heard from most of the people. I hope these answers will help people when they face layoff threats and protect them from termination. We will see answer to more questions in coming parts.
– Shyam Sundar