Introduction:
In a diverse economy like India, the explosion of knowledge and information has resulted in phenomenal progress in commercial sectors. As a result of this advancement, a new breed of employee known as “White-Collar Employees” has emerged. Employees whose job comprises, mostly or exclusively, mental or clerical work, such as at an office, may be referred to as “white collar.” White collar employment used to relate to non-manual labourers, but it now refers to knowledge-intensive, non-routine, and unstructured employees or professionals.
The state has drafted several legislation to protect the interests of the employee community. Such rules, however, have become obsolete because they were unable to provide any protection to these white-collar workers. They are bound by the inflexible contract that continues during the course of employment because they have no remedy against the employers, and in extreme circumstances, they knock on the doors of the civil courts for remedies, which take a countless number of years to be adjudicated by the courts.
Wrongful Termination
Wrongful termination is a legal concept that is frequently misinterpreted and only applies to a limited range of circumstances. It happens when an employee is fired because of discrimination, not because of layoffs, bad performance, or any other reason.
Terminating employees is one of the most painful aspects of a business owner’s or manager’s job requirements, yet it is sometimes absolutely required in order for the employer’s business to continue. It frequently results in a standoff between an employee and an employer, which provides all of the elements for baking a possible disagreement. When an employer fires an employee in violation of company policy or the law, this is referred to as wrongful termination. Unjust dismissal or discharge are other terms for wrongful termination. Simply, Wrongful termination is the illegal firing of an employee from their place of employment.
The employer must present solid and valid reasons for termination; if this is not done, the termination is unjust. Wrongful, too, because the employee isn’t given a chance to speak up. Even the fundamental legal principle of “listening to the other side” is breached as a result of this.
Grounds for Wrongful Termination
An employee may be wrongfully terminated for a variety of reasons, including –
Contractual Breach
When a firm breaks a written contract or operates in a way that contradicts the employee handbook, it is considered a breach of contract. If an employer fires an employee after a verbal warning, despite the fact that the employee handbook indicates that the following step after a verbal warning is a written warning, this is an example of this.
Performing Illegal Acts
An employer cannot anticipate or demand that an employee engage or participate in illegal acts. Participating in discriminating behaviour is one example. An employer could urge that an employee participates in improper accounting methods, such as manipulating ledgers, as an example.
Harassment
Harassment is defined as making derogatory remarks regarding a person’s gender, race, religion, age, disability, or sexual orientation in the workplace. Harassment can also take the form of unwanted advances, job-related benefits, or reprisal based on a reaction. If employees create an uncomfortable working atmosphere through their words or behaviours, whether discriminatory or not, this is an example of harassment. Also, Sexual harassment is often very common ground for such terminations.
Whistleblowing
Whistleblowers are protected from retaliation if they reveal illegal activities or violations of state or federal laws. When an employee reports discriminatory practices to authorities or gathers and submits proof of company malfeasance, this is an example of whistleblowing.
Discrimination
Discrimination is when someone is fired because of their age, gender, colour, disability, religion, belief or sexual orientation. Discriminatory techniques, both verbal and written, are included. Discrimination could take the shape of workplace contacts, such as an email, that contains disparaging remarks about age or gender.
Retaliation
When an employee is fired for reporting illegal activity or discrimination, collaborating with investigations, or exercising legal rights, this is known as retaliation. If an employee is fired after cooperating with investigators looking into the likelihood of unethical behaviour within the organisation, this is an example of retribution.
Infringement on Public Policy
When an employee’s termination disregards or breaches publicly required laws, such as the federal Families and Medical Leave Act, it is known as a public policy violation (FMLA). When an employer fires an employee who is on medical leave, this is an example of a violation.
A Constructive Dismissal
When an employer tries to influence an environment to persuade an employee to resign, this is known as constructive dismissal. It could also mean abruptly changing the employment terms. A reduction or pay cut without a legitimate reason is an example of constructive dismissal. Changes in job location without adequate notice might likewise be construed as constructive dismissal.
Laws and Rights against wrongful Dismissal of Employment
The Industrial Employment (Standing Orders) Act of 1946 and the Industrial Disputes Act of 1947, as amended, are the two primary federal statutes that govern employment termination. The Shops and Establishments Act also governs the rights of Indian workers.
Rights of The Employee
The Right to Speak Out
The employee must be allowed to defend his or her position and demonstrate why he or she should not be fired or terminated. Additionally, when an employee is discharged or dismissed, he must be given grounds for his dismissal or discharge.
The demand for the right to be heard is also in line with natural justice principles[1]. The offended party has the right to be heard under this principle. Employees have the right to be heard in order to ensure that the termination is not excessive in comparison to the offence.
Right to Sue Because of an Unlawful or Illegal Termination
The employer must provide just and reasonable cause for terminating an employee’s employment. It should be in accordance with the statutes or the job contract’s stated grounds. However, if the termination is found to be without just cause and is based on illegal grounds such as discrimination based on religion, caste, gender, age, disability, pregnancy, or other factors, the employee has the right to sue the employer for illegal or unlawful termination of employment.
Right to Receive a Termination of Employment Notice
Because federal and state laws outweigh contract stipulations, employers must follow them when terminating employees.
Right of Receiving Severance Pay
The employee has rights to certain payments that he is entitled to receive at the time of termination of his employment contract with the employer. Severance pay is the term for such a payment.
The Right to an Investigation
In the event of an inappropriate or unjust firing, an employee has the right to undertake an investigation. The facts and circumstances should be carefully examined and appropriately evaluated in order to determine whether the employee is truly at fault and whether or not he should be held accountable.
Remedies for Wrongful Dismissal of Employment
Protecting the interests of employees must take precedence over all other considerations; nonetheless, this is a grey area. Wrongful termination is generally difficult to establish. An employer who fires someone for discrimination does so intentionally, and will typically use any pretext available to hide the underlying reason for the firing.
Employees who dispute wrongful termination have the following options:
- reinstatement of employment;
- back compensation;
- loss of wages and earning ability; and
- all other expenses.
Further, workers can approach the labour department and the industrial tribunal.
Steps to Follow when such Termination Occurs
Seeking the advice of an employment lawyer
Because each state has its own set of laws, such consultation is important, and professionals from the state would be of great assistance.
Case filing
The first step should be to file an administrative claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the termination date. According to the EEOC[2], the general public is becoming more aware of and interested in its services.
Measures to be taken as a precaution
The victim must have a copy of their personal file, which contains all of their communications with the company, including emails, memos, awards, and letters. They should also have a copy of their termination letter as well as any other necessary papers.
Case Reviewing
It is critical to go over the case and all related documents, such as the employee handbook, policy manual, and union contract, at least once. Failure to evaluate it could work in the employer’s favour because they take precautions to protect themselves that the employee is unaware of.
To settle or not to settle
It is up to the victim to decide if he/she wants justice or merely a financial gain. Employers frequently pay monetary compensation in order to avoid judicial procedures, which satisfies the victim as well. However, monetary compensations are not always the desire of the victim of wrongful termination. They want to punish those employers in order to defend their rights. Before launching a case, both the attorney and the victim must be clear about their objectives.
Conclusion
Enacting laws to protect such managerial staff is critical. Aside from law, an independent regulatory body must be established to investigate all concerns that arise between the employer and the employee. The organisation will operate as a tribunal in cases involving workers who are covered by labour regulations. A wrongful termination claim and discrimination lawsuit can assist a terminated employee in obtaining reinstatement, ensuring professional discipline for discriminatory supervisors and managers, and even obtaining compensation for the employee’s lost wages and emotional suffering as a result of being unfairly targeted due to their protected status and forced to work in a hostile environment.
References:
[1] Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning “listen to the other side”, or “let the other side be heard as well”.
[2] EEOC Fiscal Year 2018 Litigation and Enforcement Data.
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