Measures to be taken after wrongful termination
A wrongful termination is defined as a situation in which an employee's contract of employment has been terminated by the employer if the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. Before terminating a person it is the duty of the employer to ensure that the person gets a fair chance to be heard according to the principles of Natural justice. The mechanism of protection of employees is still in its nascent stage in India.
In case of termination of an employee, such a termination is governed by the Industrial Dispute Act, 1948 and the Workmen’s Compensation Act, 1923. In case of violation of any of the provisions of the Act then the employee can resort to contacting the Human Resource Department. In case like this, a person who is wrongfully terminated can approach to the Local Labour Commissioner. If the person fails to get an aspired result, he can file a suit against the employer in the Civil Court. Moreover, if the person is still not satisfied with the decision he can file an appeal before the High Court.
In case of a Private Company, a person is entitled with limit scope to seek redressal. .A private firm has right to terminate its employee on the basis of poor performance and the employee has no rights/claims against this termination. However, the employer is bound by the conditions of the employment agreement, if any.
The Court on receiving any such matter has to take a look into the employment contract before taking any decision. In deciding whether an implied employment contract exists, courts look at a number of things, including:
- duration of your employment
- terms for job promotions
- previous views regarding the employee and his performance
- assurances of continued employment
- whether your employer violated a usual employment practice in firing you—such as neglecting to give a required warning, or
- Whether promises of long-term employment were made when you were hired.
Claim of Damages in case of Wrongful Termination
In case of wrongful dismissal of the employees, the opportunity to claim for damages regarding breach of employment contract, lies with the employee. The wrongful termination takes away with it the earnings as well as other benefits mentioned in the contract. Thus, the employee can claim damages from the employer. However, in case of breach of trust and confidence, no damages can be claimed.
Health Insurance, Provident Fund and Gratuity in case of Wrongful Termination:
The company is bound to continue with its group health insurance health plan for a definite period after the employee leaves i.e. for 18 or 24 months depending upon the existing provisions. However, the onus of making the payments timely will lie with the employee himself.
In terms of the Employees' Provident Funds Scheme, 1952 at the time when the employee leaves the office, the employer is required to forward a duly filled and attested form to the jurisdictional Provident Fund Commissioner.
In order to complete the process the required form should be provided to the terminated employee, to be filled by him for further submission to the concerned jurisdictional Provident Fund Officer.
As far as the Gratuity is concerned, the amount given to the employee for his work out of gratitude, the employer has the right to deny the payment of gratuity to the employee, in case of misconduct or negligence on the part of the employee that resulted in causing loss to the company. However, in case of wrongful termination the employee can ask for the amount gratuity at the time of leaving the office.
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