Introduction
Illegal termination is not defined under any statutory provision. But it is defined as an act of firing an employee without any reasonable cause or; notwithstanding any provision related to the employment contract. Illegal termination involves the violation of anti-discrimination laws and a contractual breach. For example an employee cannot be fired on the basis of her race, gender, ethnic background, religion or disability and also an employee cannot be fired for the reason that employee lodged a legal complaint against the employer or management on the basis of their wrongdoing.
If in any case the employer terminates the service of the employee on the aforementioned reason then the employee have a right to launch complaint against the employer for contractual breach and for the violation of the anti-discriminatory law. In addition of that, the courts may order the employer to pay fines and award additional compensation to an employee that was terminated on wrongful grounds but there are no specific provision under any statue to provide protection for employees who have been wrongfully terminated from their job.
KINDS OF ILLEGAL TERMINATION:-
- Discrimination:- An employee cannot be layoff on basis of race, sex, religion, nationality, age or sexual orientation.
- Retaliation:- An employee cannot be fired on the on behalf that employee claims compensation or participating in an investigation for discrimination.
- Reporting to govt. authorities on violation of law:- An employee cannot be terminated on the basis of a complaint made to any government authority against violation of law.
- Employee’s refusal to commit an illegal act:- If an employee denies to commit any act that is illegal ab-initio then the employer cannot terminate his/her service on this basis.
How wrongful termination works
If an employee is fired for one of the following reason, they may able to claim wrongful termination
- Breach of contract
- Constructive discharge
- Discrimination
- Employee asked to commit an illegal act
- Company policy is violated
- Public policy is violated
In above mentioned facts, a large no. of myths and misconception arise about illegal termination, some of them are as follow:-
- Termination that seems unreasonable amount to illegal termination
- Legally fired for publicly admitting.
- Workplace discrimination laws are for women and minorities.
- Protected by employment law.
Illegal termination under statutory provision
Any termination needs to be in alingnation with federal and state law because these laws supersede contract provisions. As per the state law, it becomes particularly important when no defined procedure for termination exists. On above circumstances the state law becomes the rule of thumb for terminating an employee.
Federal labor legislation governing termination in India
As per the Industrial Disputes Act of 1947; those workers who are not working in a managerial or administrative capacity, then any such employee who has been employed for more than a year can only be terminated after the permission is granted by a suitable government office. Additionally, an employer must provide valid reason for termination and pay a severance amount that is equivalent to 15 day’s average salary for each year of uninterrupted employment.
Impact on employers
Illegal termination does not comes under any due process of law as followed by respective state laws. However if any such act is done by the employer then he shall face the legal consequences for the same. In addition of that the courts may order the employer to pay fines. the court may also award additional compensation to an employee that was terminated by the wrongful termination.
Also the employers should be aware about labor laws and the state procedures for terminating employees in their contracts, significantly reduce the potential for labor disputes related to the termination of an employee.
Beyond this, an employer must ensure that management teams and HR professionals are fully briefed on termination procedures.
How to handle an illegal termination
If your employer terminates you from employment; it’s necessary to know about rights and; the next step is to determine what remedies are available and what recourse you may have. That will help you decide on a course of action. For example, you have the right under an employment contract as well as rights protected by state and federal law.
Read more blogs @advocatetanwar.com
Written by
Arvind Yadav (Legal Associate)
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