Industrial Disputes Act (ID Act) & IT Employees Rights

Now, the scariest thing for an IT employee is getting a call from the HR. It does not matter why the HR was looking for you; immediately, your thoughts would race to the recent news about CTS planning to layoff 6000 of its employees; then your mind would think about your recent ratings, whether you are on the bench or allocated, or yet to be allocated, all the hard work you have done, the long hours you have worked ,the sacrifices you have done so far, and most importantly, how do you face your family and friends if you were to be laid off. If the HR decides to terminate you, will your manager (with whom you recently worked or had in the past) be supportive and raise a voice against your termination or will he stay mute? The pathetic truth is no one will talk for you as they would also be gripped by fears of losing their job. But still,do not to worry, let me explain in this article who can fight for you, and how.

Let us assume that your employer does not need you in the company anymore , you will in all likelihood be ‘asked’ by the HR to submit your resignation. Have you ever wondered why they are not terminating you upfront, but instead coercing you to resign? Is it to safeguard your future? Obviously not. There is a huge difference between getting an employee to resign and terminating his/her employment; complex legalities are involved.

This article exposes the real motive of the company in asking(through the HR) its employees to resign by shedding light on the legality involved.

Forced Layoff 

Why are companies forcing their employees to resign on their own? If a company terminates its employees, it needs to be reported to the government (and the company needs to obtain government’s permission to layoff). An employee has every right to fight for her/his job using the Industrial Dispute Act ( IDA). And in order to avoid a legal dispute, the company threatens to withhold the experience letter of the employee unless, he/she resigns on their ‘own’. How cruel is this? Very, but it is also totally illegal. Remember, companies hunger for limitless profit but do not want any legal challenges or hurdles.

What-if?

When a company forces its employee(you) to resign, how can the employee(you) handle such an incident? At the outset, don’t panic or get emotional, though it is very hard not to. Please remember the HR who is talking to you, did not take this decision individually, this is the decision of your company. So, there is no point in directing your anger towards  the HR who is talking to you. Don’t fight. Considering the gravity and sensitivity of the issue, ask her/him to write a mail or produce a printed copy of the discussion. Please note asking or requesting an employee to resign is equivalent to forcing, and it is an offense as per Indian labour law. An employee can be terminated or suspended with sufficient notice in compliance with the law, but no one has the right to demand/request/ask the employee to resign.

What next?

When an Employee does not fall for the forced-resignation bait, the HR might apply for resignation in the system(too much of automation) directly without the employee’s consent or might terminate the employment. A Company has no right to withhold your experience letter or relieving letter under any circumstance. In this scenario, the employee can start a legal battle- it is not an easy battle, but it not very difficult either. There are cases where employees have legally fought against their forced-resignation and successfully retained their jobs. So, how to fight it out legally?

Compensation 

If the employee resigns his/her job, a month’s salary or three months’ salary should be paid as specified in his/her offer letter. However, if the employee is terminated, a month’s salary for every year of his/her service needs to be paid along with the notice-period salary. To save this money and to escape from legal battles companies threaten employees to resign on their own. Trust me, there are also companies which are paying the notice-period compensation and one-month salary for every year of service in case of termination of employment.

Industrial Disputes Act  (ID Act)

The Industrial Disputes Act has provisions to settle disputes with your employer. With respect to illegal layoffs, there are two important categories:

ID Act – 2A enables an individual to get legal protection over any dispute with employer.

This process can be initiated in the labour department of your city or district. Once it is initiated, the labour officer would notify the employer about the complaint. The labour officer would council the employee and the representative of the employer. If the employer is convinced, the employer can retain the employee after paying the arrears. However, there can be multiple rounds of conciliation process for 45 days from the initiation date.

If the conciliation process could not attain the desired result, then the complaint will be moved to the labour court. Here, you need to hire a lawyer to appeal your case.

ID Act – 2K  enables a union to represent one or many individual(s) to get legal protection to the employees over any dispute with employer. A union or group of employees can initiate the process of legal fight. Further steps as similar to ID ACT -2A.

Fighting against this unethical act of forcing the employees to resign is the responsibility of every IT employee, not just that of those specific employees who are affected. Standing together as a union to fight this injustice meted out to us is very crucial. Unionizing IT employees is the solution. Forum for IT employees (FITE) would help you morally and help you to win over your right.

Vasumathi,

Vice-President, (F.I.T.E)

 

  • Upasak Poddar

    I have joined on 19-sep-2016. I got my 1st project on 5th dec. Everyday i saked my manager to allocate me in project. Now i got MS. Now they are giving me reasion you got this because of your allocation. Now they are not able to allocate me in any project. Client already select me for a project and scrum call and all other client id has been created. Just because of the rating I will not allocate to any project. Unofficaly my manager told me to start searching for a job.

  • Upasak Poddar

    I have joined on 19-sep-2016. I got my 1st project on 5th dec. Everyday i asked my manager to allocate me in project. Now i got MS. Now they are giving me reason you got this because of your allocation. Now they are not able to allocate me in any project. Client had already select me for a project and scrum call and all other client id has been created. Just because of the rating I will not allocate to any project. Unofficaly my manager told me to start searching for a job.

  • Supriya k c

    Hi guys, I joined cognizant in 2012, this is my 7th year in cognizant Bangalore location.i got MS rating because I asked release from the project. From Monday HR is forcing me to resign without any official mail from company.can any one suggest wat can be done, please call me on my mobile 7996085849

    • Anand Kumar

      Dear Supriya,
      Donot resign, the employer has no right to terminate your employment so asking to resign.
      Just relax and donot panic. Tell the HR that I am in no position to resign now and looking for job, once I get a confirmation from other company I will resign immediately.
      Donot worry nothing will happen.
      No one can force an employee to resign 🙂

  • Ranjith Krishnan

    Thank you for the article: But please clarify this

    (iii) who is employed mainly in managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity draws wages exceeding Rs. 6500/- per mensem or exercises, either by the naturee of the duties attached tot he office or by reason of the powers vested in him, functions mainly of a managerial nature.

    In that case almost all techies will be drawing a salary of 6500 above, how this is going to be usefull ?

    • Ankit Shrivastava

      Hi Rajnith,
      As per ID Act 1947, in order to qualify for ‘Workman’ one needs to work in skilled, unskilled, manual, technical and supervisory capacity. The rule of earning more than 6500 only applies for supervisory capacity workers. However, the employees working in pure managerial capacity do not qualify for ‘Workman’. if employee was engaged in both skilled and managerial job then employee’s primary role would taken in consideration to make final decision.

  • Shipra H. N.

    Thank you for this information. Does a call centre associate qualify as ‘workman’ under ID Act?