Views and Law : Terminations not Legal, can be Challenged and Overturned

This entry is part 2 of 8 in the series Senior Wipro Employee

The Senior Wipro Employee who shared what is happening inside Wipro sent us another write up.

In the writeup, we added information about legal rights of employees  at appropriate places (in shaded block). This information was as shared by NDLF lawyer at the April meeting of our UNION. We will publish a detailed article from the lawyer with more specific information soon.

On another note, the media has approached NDLF regarding the Wipro job losses and we have arranged media to talk to affected persons.

I have seen a lot of responses for my post from my fellow Wiproites and thought to write more on this.

HR henchman

HR role is like hanging people role who has to obey what is passed from above.

Before going to fight against management, I want to bring the common mistakes which we IT people make:

1) I have seen many posts blaming Managers and HRs as part of termination process. Please understand they are doing their job and instructions are coming from managements [and investors]. They are more pressurized in this process. Their role is like hanging people role who has to obey what is passed from above.

2) IT people feel shame when they get MCE rating. They will not share their rating with others. Even if they got terminated, they send thanking note on the date of resignation to all. I have never seen a single mail in my last 20 years experience where people stated “management has given mce rating and I am resigning due to that”.

This has to be changed and we should send mail stating reason of resignation to all other friends

3) IT people don’t know what is the law saying on termination.

We need to spread awareness on what is Indian law for termination. I have seen 99% of the people leave this matter without checking this if they get another job. This awareness and unions will automatically stop all illegal termination.

I have seen Madras labour court has clearly stated this in a case against HCL “as per the ID Act, any person employed in any industry doing any kind of manual, skilled, unskilled, technical, operational, clerical or supervisory work, for hire or reward, is a ‘workman’.”

“The [company’s] argument was that he was removed from the job after being given several opportunities for improvement. The Court overruled this argument saying that the company had not produced any evidence to show that the failure to improve performance or to measure up to expectations or standing orders, would amount to an act of misconduct.”

[ a. Termination

The above judgement means that the company can terminate an employee’s services only after establishing misconduct on the side of employee. Any alleged misconduct should be established by clear documentary evidence in terms of standing order, show cause notice, enquiry proceedings etc.

To terminate anyone citing performance issues, ‘low performance’ or ‘failure to improve performance’ should have been included as misconduct in the company’s standing orders issued to all employees.

Other than misconduct, there is no ground for termination of services of an individual employee.

What about mass job losses?

b. layoff
This is a temporary measure to tide over lack of orders, natural calamities or non-availability of inputs etc. The company can announce layoff for a definite period, but the employer-employee relationship continues. Once the period is over, the employees will go back to work.

c. Closure
The company is no longer able to run profitably and decides to close down. In this case, all the employees should be given proper compensation.

For example, when Nokia was shut down, they paid compensation for employees after a lot of struggle. If company which is shutting down is paying compensation, why not companies running in huge profits do that? The main reason is we don’t have this awareness and unity among us.

Wipro, Cognizant and other companies resorting to forced resignations run profitably.

d. Lock out
This a temporary closure. But when the company reopens, the same employees should be taken back.

e. Retrenchment
Here also the company should make out a case that they are not able to manage with so many employees and want to retrench definite number of them. Most experienced employees should be retrenched last. The company can not send out all senior workers and take fresh recruits to run operations.

As and when the company recruits any new employee they should give preference to the retrenched employees first.

In all the cases a,b,c,d any company having more than 100 employees should get prior permission from Labour department for the action.]

First we need to educate ourself before taking this fight. Honestly I would have not taken this fight, if I am marked as part of band inertia. This is the main advantage of senior management who is doing divide and rule policy. People who got affected by band inertia please call NDLF number and let us try to form a group as next step to fight against this.

The solution can be achieved in 3 ways:

1) Bring our problem to the attention of others. This can be done by publishing our experience in this site, meeting media, forwarding these issues to all our friends etc. But this alone will not solve the problem.

2) Second step is to form a group and file grievance under ID act in Labour office. This is more effective if group is large. Employees in different location give complaint in different location at same time. Then we should continue the legal fight. Before that we should know what legal terms are. [under section 2A of ID act individual employees can file grievances, under section 2H Union on behalf of employees can file grievances]

3) Third step is to form a strong union and protest in front of IT offices etc and continue to build the Union activities.

I am thanking NDLF for posting my views on their site.

– the same Senior Wipro Employee

Series Navigation<< Wipro’s Layoff Plan : Senior Employee Prepares to FightWipro Band Intertia : Senior Wipro Employee Continues Fight – The Next Step >>

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