- 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 seventh part of Series 2
We are talking about various queries on how employees can get legal protection from layoffs in the previous part. We will try to answer more frequently asked questions in this part.
I filed 2A petition in the labor office. Do I need to inform this to my organization? I don’t want to inform this to management and if my management try to terminate me, I will use this petition at the last stage. Is this correct approach?
Prakash Raj is forced to resign and he submitted his resignation. As per company policy, he has to serve 2 months notice. He later came to know about legal rights and filed 2A case with the guidance of our NDLF union. He sent multiple mails to withdraw resignation request. But company dragged his entire notice period and sent him out on the agreed last date.
The labor officer called the management for his 2A petition. Prakash argued that he filed the petition before his exit date from the company, hence he is protected under section 33 and wants management to reinstate him. But the management claimed that they are unaware he filed any petition and no notice was received from labor office also. They mentioned Prakash submitted resignation on his own and no legal dispute is there and management is not in a position to reinstate.
We are filing complaint only to get protection. So we need to intimate the management immediately that the employee has filed for legal help. This notification will give a high chance of legal protection and employee should attach the acknowledgment challan and sent a mail immediately after filing 2A to avoid such issues in future. So early you communicate, minimal will be the chances of termination.
How to file 2A or 2K case? How much it cost to file 2A petition?
We need to go to labor office nearer to the location of the office where employee is working and file 2A or 2K case. Usually every district in the state has labor office. For example, Chennai has labor office in Kuralagam – Paris. We have to file 2A case only to the labour office associated to the place where employee is working.
This is just a petition and we need to give details about the threat to employment and seek labor officer intervention to protect the job of employee. This does not cost anything and employee has to go in person along with offer letter, employee ID and petition for in case of individual under section 2A (loss of employment) or under section 2K through unions for all work related issues.
If one employee is working in Pune and the other is working in Mumbai, they have to file their petition in 2 different offices and cannot be combined even if both belong to Maharashtra.
I have a lawyer in my family and can I go directly to labor court as this may be faster?
We can directly approach labor court through lawyers. But some judges want to go through labor office before coming to courts. So consult your lawyer and ask whether it is possible to skip labor office procedure.
What is the advantage if I file 2A or 2K petitions?
Firstly, when a dispute is pending with labor office, employer should not alter terms of employment as I explained before. So until the dispute is over, chances of termination is less.
More importantly, the company may come to the conciliation proceedings and your grievance (job loss, HR threats etc) might get resolved. If not resolved in the labour department, it will go to the labour court.
Can I include reasons like company has given me irrational performance appraisal as 2A petition?
Section 2A of Industrial Disputes Act is for the loss of employment.
For other grievances such as appraisal process and others, a petition should be filed under section 2K of the act collectively. Usually it is filed through union after passing a resolution in the union meeting and taking up the grievance internally with the company.
What happens if company still terminates me when the petition is pending with labor office?
This is legal violation and if taken to court, chances of employee to be reinstated is very high. Labor officer also has the authority to direct the company to reinstate the employee immediately.
How much time it takes for getting resolution of my 2A case?
Legal system takes its own time. When an employee files petition, usually the labor office fixes the hearing date and asks both employer and employee to attend the conciliation on that particular date.
The employer usually skips such notice and labor officer sends repeated reminders with new dates. If employer does not come for 3-4 hearings, labor officer will give failure report. Usually in this scenario, failure report will be obtained in 3 months time.
But many times, employer will come for the 3rd or 4th hearing as organization has to answer in the labour court why they skipped the conciliation procedure. The employer will give return statement (response) answering employee’s petition. Employee can file a reply to that (counter). In this scenario the conciliation process will go on for 5-6 months.
In simple terms, if employer attends the conciliation, failure report will be given in 6 months time and if they skip, failure report will be given in 3 months time. If the dispute is resolved with the consent of both sides, it the case will be closed.
Otherwise the scene moves to labour court.
There is very little chance for the case to be settled in labor office. Usually company will not accept that employer is terminated. In such a scenario, labor officer will give failure report. In that case, employee has to take to next level by filing petition in labor court. The court proceedings will take 1-2 year. In some states, judges asked to take the case in fast track and order to close the proceedings within 6 month time. In that case, it will go faster
Due to employer pressure, I submitted resignation and currently I am jobless. I lost my job 6 months before. I come to know about legal rights only recently. Can I still raise grievance under section 2A?
If employee is terminated, they can definitely file 2A petition seeking employer to reinstate the job. There should be a reasonable explanation (lack of awareness or other reason) for the delay in filing the petition.
How much it cost if I take it to labor court? I am jobless and it will be difficult for me to spend a lot for legal proceedings. What sort of help I will get from unions in this case?
The cost depend on the time it takes and lawyer whom you fix. As part of NDLF, we have union lawyers and they can help in providing legal support at a reasonable cost. On a case to case basis, we are also providing 50% of the cost for legal expenses to affected employees who are deserving from donation collected from other union members.
We are doing this currently only for employees in Tamil Nadu.
I hope the above 15 Q&A will help you to get clarify some of the queries.
Till a few years back, number of legal cases against IT companies were very less. But from last year, there is an increasing number of cases against companies by affected employees. Judgments in these cases in the coming years will set benchmark for many IT companies for restricting illegal retrenchments.
IT unions like NDLF are getting people’s attention and now many of the IT employees affected by layoffs are contacting unions for help.
So in the future if any IT employee faces job threat, don’t take it emotional. It is definitely nightmare for any IT employee facing jobless. But, I am sure this awareness will help you to successfully face this threat and safeguard your job.
You can forward this series to all your friends working in IT sector, as awareness is the core factor to control IT layoffs
We will see answers about more queries that comes from IT employees in the coming part.
– Shyam Sundar