Legal Consultation for Employment & Salary issues From Expert Lawyers in India

Employment issues in India are being divided into two areas i.e. one faced by the employer and the other faced by the employee.

One of the common problems faced by the employers is their employees joining other competing organizations in lieu of better wages which is regulated by the Indian Contract Act, 1872. Under the employment agreement employees are restrained to work in competing organizations while serving as an employee. But even in the presence of this non-competition clause, many employees work in competing organizations. Other problems which are usually faced by the employers are the recovery of training costs and clauses that come into play post-termination of an employee.

Further, labour laws like Factories Act, 1948 and other laws of different states lay down working hours, a number of overtime hours and other provision to safeguard the interest of employees. However, these laws serve as a challenge for employers in cases where they have fixed hours to achieve greater efficiency while managing their workforce.

On the employees’ end, employers often send legal notices to employees although the clauses of non-competition are unenforceable post-termination of the employee. Hence, the employees are faced with mental agony and the cost involved in defending their cases. Other issues like remuneration withheld/bonus/PF/ maternity leave/unfair termination/ etc. often cause stress and confusion in an employees’ life. The employees’ right is another aspect that is needed to be protected. These issues include fair compensation, right to privacy, freedom of discrimination, etc.

• Labour matters under the Indian Constitution falls in the Concurrent listwhich gives power to both the Central government as well as the respective State governments to frame laws, as a result of which several laws have been framed to protect both employers and employees.
• The employers, as well as the employees, therefore, have to comply with several employment laws. IT sectors are most prone to challenges under the Indian Labour law because of their excess workforce. Companies which have their industries in various States have to comply with the law of every State and service matters in order to avoid legal proceeding.
• Manufacturing companies and large companies have trade unions which are sometimes backed by political party and are very often interested in protection of employees’ interests.

All these are the issues which need to be addressed under the employment issues.

Termination of employment is one of the most unpleasant and unwanted procedures. However, the termination must be conducted in the most ethical and legal manner possible. If termination is performed in any of the following forms, it is considered as wrongful termination of employment in India:

• Discrimination:  If you are being fired because of your age, race, sex, nationality, or such discriminatory grounds, it is a type of wrongful termination. For instance, an employer cannot discriminate and terminate an employee if he/she has HIV. Any employer who terminates an employee on any such grounds would be guilty of wrongful termination.
• Breach of Contract:   If you have signed an employment agreement, you and your employer need to abide by the terms of that agreement. If the employer breaches any of these terms, it is a type of wrongful termination. Any term that is done through constructive dismissal i.e. by creating a situation in which the employee himself/herself resigns, is a type of wrongful termination of employment.
• Other factors:   If you’ve been fired for a workplace dispute, personal grudge, refusal to act on illicit orders of the employee, etc., it is also a type of wrongful termination. An employer cannot fire you due to a personal discord between you and your employer.

There are several labour laws in India against wrongful termination of employment. If the wrongful termination is done on the basis of discrimination due to age, gender, race, caste, etc., it is a violation of the fundamental rights of a person given under the Indian Constitution.

If the wrongful termination of employment is done in violation of any provisions of labour laws, the Industrial Disputes Act, 1947, the Workmen's Compensation Act, 1923 and State Shops and Establishments Acts come into play. The labour laws in India primarily deal with wrongful termination of employment of labour class in India. However, within the meaning of ‘workman’, even the managerial sector comes within the application of labour laws in India.

Once you have established the reason for wrongful termination, you can choose the correct legal remedy against your company. Here’s a guide on what you can do against illegal termination of employment:

Write a formal complaint or grievance letter for wrongful termination, with the Human Resource (HR) Department of your company. Give them time to evaluate the case and come up with a proper answer. Usually, HR is able to resolve your dispute with the employer and halt your termination. If the answers given by the HR department are unsatisfactory, hire a labor lawyer and send a legal notice to the employer detailing the case and seeking end-to-end damages. These damages include:

• Back Pay
• Lost Benefits
• Out-of-pocket losses
• Injunctive Relief
• Punitive Damages
• Severance Package
• Retrenchment Compensation
• Health Insurance
• Provident Fund

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.