Terminated for taking leave for medical reasons. What can be done now?
What legal action can we take against a company which terminated my friend suddenly? She has been on sick leave since 26th March and had intimated her senior through sms as well. On 7th March her senior called her to tell her that she had hired a replacement and told her not to come now. She had a Medical Certificate as well. She kept calling & mailing the company for 7 days to which no response was received.
On 15th April, the company issued a warning letter giving her a 15 day notice of termination. My friend replied to the notice stating all history-medical certificate.
What can we now do?
We would be in a better position to guide your friend once we can peruse her Employment Contract, however we have tried to provide you the response to your query as per the information provided by you:
As you have stated that your friend's services were terminated abruptly without any real cause as she was medically sick and therefore unable to resume services. The fact that she has intimated the company and she has the medical certificates to prove her illness, she has a strong prima facie case against the company for illegal termination.
If your nature of duties of your friend would come within the purview of "workman" as defined below, then she can file a case before the authority under the Delhi Shops & Establishment Act (if you are working in Delhi), who is the Deputy Labour Commissioner.
Applicability of the Industrial Disputes Act:
The Industrial Disputes Act extends to whole of India and applies to every industrial establishment carrying on any business, trade, manufacture or distribution of goods and services irrespective of the number of workmen employed therein. Every person employed in an establishment for hire or reward including contract labour, apprentices and part-time employees to do any manual, clerical, skilled, unskilled, technical, operational or supervisory work, is covered by the Act. This Act though does not apply to persons mainly in managerial or administrative capacity,persons engaged in a supervisory capacity and drawing > Rs.10,000 per month or executing managerial functions and persons subject to Army Act, Air Force and Navy Act or those in police service or officer or employee of a prison.
Alternatively, you can file a claim petition before the authority under Payments of Wages Act. A labour court judge is generally designated for this purpose. Or alternatively, you can file an application under Section 33 C(2) of the Industrial Disputes Act.
If the above is not applicable to your friend due to her profile / position in the company:
She has to file a civil suit against the company for damages and compensation. The Courts cannot reinstate an employee in a private company, so therefore she can only claim damages and compensation.
She has the following points in her favour:
i. Breach of contract: The notice period of 15 days was given to her but when she was on sick leave so basically the notice which was given was a mere formality which contained no reason for her termination. If the reason stated is that she was not reporting for duty then the fact that she had intimated her senior shall run in her favour. You need to see her contract with the company as to the time period stipulated for giving the notice of termination.
ii. Violation of Principles of Natural Justice: She was not given a fair hearing before terminating her services. (Violation of principles of audi alteram partem)
iii. Arbitrary and unreasonable action by the Company: Arbitrary action of terminating her services without any real cause. Moreover, the company had informed her about the replacement even before the notice of termination was given to her.
There are very strong grounds to make a claim against the company for damages and compensation, which may be initiated via a Legal Notice sent to the company via a Lawyer followed by a Civil Suit for recovery in case the Notice does not get the desired relief.
- Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at LawRato.com and has been responded by one of the Labour & Service Lawyers at LawRato.com to address the specific facts and details. You may post your specific query based on your facts and details to get a response from one of the Lawyers at LawRato.com or book a Detailed Consultation with a Lawyer of your choice to address your query in detail.
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