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What to do if my boss fired me for complaining against him?

Even when it’s not your fault, losing your job is a possibility. A wrongful termination occurs when you are let go without good reason, when a company is downsizing, or when a personal issue arises. Learn how to pursue justice in these situations by reading on.

In various places like Bangalore, Hyderabad, and Chennai, around 1200 Verizon Data Services India employees were let go. The HR person, according to several employers, was accompanied by bouncers and goons who coerced workers into signing their resignation letters. The Labour Commission intervened and took action against Verizon for breaking Indian labour regulations.

This is hardly the only instance of a big firm firing someone illegally. In the past, businesses have taken the route of mass layoffs for a variety of reasons. Companies that have come under examination by labour regulators for huge layoffs include Snapdeal, Infosys, Tech Mahindra, Wipro, and HCL, to name just a few.

Even when it’s not your fault, you could still get dismissed from your work. If you are fired without good reason, because your firm is downsizing, or because of a personal issue, it was an unfair termination. One of the most frequent sorts of job conflicts is wrongful termination. Thousands of employees experience wrongful termination every year, yet often are utterly uninformed of their legal options. You must determine whether the termination was unlawful before you consider taking legal action against the employer.

Different types of wrongful termination

Employment termination is one of the most unpleasant and unwelcome processes. The termination must be carried out in the most moral and legitimate way though. In India, termination in any of the following ways is deemed to be unjust employment termination:

  1. Discrimination: When someone is fired on the basis of their age, ethnicity, sex, nationality, or another kind of discrimination, it is known as wrongful termination. For instance, if an employee has HIV, their employer is not allowed to treat them differently or fire them. Any employer who dismisses an employee for one of these reasons would be in violation of the law.
  2. Breach of Contract: If you and your employer have a formal employment contract, both parties must adhere by its requirements. It is a kind of wrongful termination if the employer violates any of these conditions. Any term that is terminated unlawfully involves the use of constructive dismissal, which is the act of forcing an employee to retire on their own.
  3. Other considerations: It is also a kind of unlawful termination if you were fired due to a conflict at work, a personal grudge, your unwillingness to carry out an employee’s illegal directives, etc. You cannot be fired by a boss because of a personal issue you have with them.

Laws applicable against wrongful termination.

In India, employers are protected from wrongful termination by a number of labour laws. The fundamental rights of an individual guaranteed by the Indian Constitution are violated if the unlawful termination is carried out on the basis of discrimination owing to age, gender, ethnicity, caste, etc.

The Industrial Disputes Act of 1947, the Workmen’s Compensation Act of 1923, and the State Shops and Establishments Acts come into play if the unjust termination of employment was carried out in contravention of any sections of labour legislation. The majority of India’s labour laws are concerned with the unfair dismissal of members of the labour class. However, even the management sector is subject to the application of labour laws in India when the term “workman” is used.

The Industrial Disputes Act, 1947 (ID), will also be included into the Industrial Relations Code, 2020 (IRC), is the primary statute that governs such terminations. According to the IRC, retrenchment, which necessitates a month’s written notice period, will be treated as termination for any reason other than disciplinary action. The cause for the retrenchment must be specified in this notification period. Compensation for the retrenchment must equal 15 days of average pay for each year of finished continuous service. Therefore, it is important to remember that the employee has a right to specific payments under the IRC or employment contracts, as applicable.

For establishments whose at least 300 employees have worked continuously for a full year, prior approval from the relevant government is needed before termination. Additionally, the employee must be given a three-month notice period by the company. If the reason for the termination is misconduct, the employer is not required to give any previous written notice. However, as was already established, the investigation had to be conducted in accordance with the principle of natural justice, giving employees the proper opportunity to voice their objections.

The idea of fixed-term employment, which is excluded from the IRC’s definition of retrenchment, is a crucial factor that may go against workers’ rights. In this situation, any employees employed on a fixed-term basis may be fired or terminated at the end of the term without providing a cause. Without giving employees any significant rights, this can support an unjust dismissal or wrongful termination.

Issues related to the discharge and dismissal of workers, or the grant of relief, will be under the jurisdiction of the Industrial Tribunal as per Section 44(7) of IRC. The abolishment might curtail the rights of the workers in terms of denying access to justice. Across most legislations, the notice period is usually one month for termination of employment. Such notice entitlement is under the ID act and is also present in different State Shop and Establishment Acts. On the other hand, if an employer wants to change any condition of service applicable to any worker, it needs to provide a Notice of Change, at least 21days before the change.

Are the laws applicable to the private sector?

People facing discrimination at the workplace do file against such instances based on the Constitution. Therefore, private discrimination is pervasive in India.

Most fundamental rights under Part III of the Constitution are against the State. However, Article 15(2), which prohibits discrimination, is addressed to ‘private individuals’. The only impediment is the grounds laid down under the provision. Most cases are filed against the State and discrimination claims are rarely filed against private parties. Under the Indian Medical Association (IMA) vs. Union of India, the question was considered whether a private college can be held accountable for discrimination under the Constitution. The court did not give a plain reading to the Constitution, as that would have absolved the college. Rather, it was interpreted along with Articles 14,15,16 & 38 and with national aspirations of seeking equality in status, opportunity, and socio-economic justice in a welfare state. This shows that the private sector also must not facilitate ideas of discriminations and disadvantages and, in doing so, they shall be held liable for breaching the Constitution. The court’s interpretation of Article 15(2) is in consonance with the history, social context and the jurisprudence of discrimination law.

In simple words, whether the company is state-owned, private or from unorganized sector is irrelevant and all the laws are applicable in case of workplace discrimination.

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Steps to be taken.

You can choose the appropriate legal action to take against your employer once you have determined the cause of the wrongful termination. Here is a guidance on steps to be taken for wrongful termination of employment:

  1. Write a formal letter of grievance or complaint on a wrongful firing and submit it to your company’s HR department. Give them some time to consider the situation and determine the best course of action. Most of the time, HR can settle your conflict with the business and stop your firing.
  2. If the HR department’s responses are unacceptable, consult a labour lawyer and write the employer a legal notice outlining the matter and demanding complete damages. These damages include but not limited to:
  • Back pay, lost benefits, and expenses
  • Prohibitive Relief
  • Retaliatory Damages
  • Severance Pay Reduction in Hours Compensation
  • Insurance Provident Fund for Health

Make sure you are fully prepared for the courtroom if you decide to pursue the matter. Keep a record of any instance you feel violated your rights or was incorrect. Include the time and date in your note if you can. Your attorney will be able to determine if you even have a case due to this, which will be of great assistance. Even when you are speaking with the HR department, you can use this information.

In case of violation of a contractual agreement, you can file a lawsuit against the employer for wrongful termination in the Labour Court. The court can order the employer to restore you at your job and pay damages for wrongfully terminating you.

Having no standard procedure, the main document is the Employment Contract between the employee and the employer wherein the terms and conditions are enshrined. In case the contract is arbitrary, it is to be noted that the labor law will supersede the employment contracts. Therefore, while terminating an employee, the employer needs to comply with the central and the state law, or the Codes, once effective. As mentioned, the employer must provide a reasonable reason for the dismissal. If the reasons are not provided, it is the prerogative of the employee to seek them. In case the reasons are unjust, the employee has the right to conduct an inquiry against the unjust treatment. The employee can send a legal notice to the employer in case of such unjust termination. The employee can finally move the Labour Court in case no relief is provided from the employer.

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