Termination of Employment
Do employees have to be given notice of termination of their employment? How is the notice period determined?
Employees must be given a notice of their termination by the employer; however, in case the employer chooses to terminate the employment with immediate effect, i.e., without any notice, it may do so by paying wages/salary to the employee in lieu thereof. This period is stipulated to be a period of one month under the IDA and the Shops and Establishment Acts of certain states. This period of notice may be altered as per the terms contained in the contract between the employer and employee governing the terms of employment.
It is pertinent to note that the period of notice or wages thereof is waived off in cases of termination owing to misconduct of the employee, in which case the employer can terminate the employment with immediate effect without any further liability. Under the IDA, such termination must be carried out after following the due process prescribed under the Act and after the findings of the domestic inquiry conducted to consider the allegation of misconduct, are found to be against the employee.
What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?
An employee may challenge/dispute the case of his/her termination by the employer, in the case of termination for non-performance, either by questioning the procedural aspect of the termination, or by denying the existence of the element of non-performance. Therefore, despite complying with all applicable legal requirements, a termination may be construed to be bad in law if the employer fails to prove the existence of the alleged grounds amounting to termination. In such an event, the employee may seek any of the following remedies for his/her wrongful termination: reinstatement with back-wages for the period of wrongful termination; damages; or such specific relief as may be appropriate.
What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?
An employee is entitled to claim unfair dismissal on the following grounds, namely by questioning the procedural aspect (of the termination) and by denying existence of the element of non-performance. Thus, despite complying with requirements of a valid and legal termination, the employer faces a challenge to the termination if the evidence of the reasons leading to termination of the employee is not supported by proof. Under some circumstances, the employee may also allege unfair labour practice on part of the employer.
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