Unfair dismissal or wrongful termination of an employee


Unfair dismissal  or wrongful termination of an employee is  construed as  one and same. unfair dismissal is an act of removing or terminating an employee without assigning valid reason or on valid grounds. It is treated as unfair on the part of employer if an employee is removed or terminated without giving him valid  reasons for such major act, despite his compliance and  discipline and not giving opportunity of being heard which is also against to the principles of natural justice.

There is separate branch of law which is called as labour and industrial which deals with employment issues. Labour laws are set of laws enacted specifically to deal with employment issues in order to protect workmen from unfair activities by the employer. There are various provisions in labour laws, envisaging situations and circumstances under which employee should not be removed by employer from the employment. below mentioned are the certain circumstances under which the employer should not terminate his employer from the employment


Dismissal or termination of employee without paying

Right to live and work is the fundamental right of every citizen.Earning for living is the primary object of everyone. Though livelihood of person to person may vary but every person work for earning for supporting his/her life. It is the right of an employee to get paid by his employer for the work extracted by  his/her employer and it is the duty of every employer to pay wages/salaries to his/her employees for the work done. Though there are labour laws like The Payment of wages Act, 1936 having provisions for regular payment of wages/salaries to employees without failure, it is needless to refer them as, it is basic duty of an employer to pay employees for the work done. Therefore it is unfair on the part of employer to dismiss or terminate an employee without paying him for the work done, unless employee wilful negligence caused serious loss or damage to his/her employer. 

Layoffs or retrenchment

Section 25A to 25S in industrial dispute act 1947, deals with the layoffs and retrenchment of employee.
 
To make it clear, layoff is temporary suspension of employee except on the reason of punishment and retrenchment is removal of  surplus staff due to employer inability to maintain employees.

According to the said provisions, employee should not be layoff or retrenched without showing valid reasons to the employee and to the appropriate authority and without the permission or approval of the appropriate authority. If layoff is in accordance with the Industrial dispute  Act 1947, employer is liable to pay compensation equal to 50% of  remuneration of employee. provided that organisation or establishment should not be seasonal character and should consist of more than 50 employees.

Retrenchment: for establishments  or organisations having 50 or more employees but  not more than 100, employer should give one-month notice to the employee who is going to be retrenched or salary in lieu of that notice and employer is liable to pay retrenchment compensation at the rate of half month's salary for every year of service employee  puts up. Provided that employee should complete minimum one year of service in the establishment.

For establishments or organisations having 100 or more employees and not of seasonal character, such employer should give three months notice to the employee who is going to be retrenched or salary in lieu of that notice and employer is liable to pay retrenchment compensation at the rate of half months salary for every year of service employee puts up. provided that employees should complete minimum one year of service in the establishment.

Note:first come first go principle should be followed by employer for retrenchment of employee.


It is unfair on the part of employer to dismiss employee  for the following reasons mentioned below

THE FIFTH SCHEDULE : Unfair Labour Practices
[Section 2(ra)]


(a) threatening workmen with discharge or dismissal, if they join a trade union;

(b) discharging or punishing a workman, because he urged other workmen to join or organize a trade union;

(c) discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act);

To discharge or dismiss workmen-

(a) by way of victimization;

(b) not in good faith, but in the colorable exercise of the employer’s rights;

(c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste; (g) for misconduct of a minor technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.

(11) To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute


Dismissal or termination of employee during the maternity leave

According to the Maternity Benefit Act,1961, section 12 [Dismissal during absence of pregnancy ] is unlawful by the employer to discharge or dismiss her during or on account of such absence.

The discharge or dismissal of a woman at any time during her pregnancy Is also unlawful on the part of employer.

(The dismissal shall be lawful unless there is gross misconduct on the part of employee)



Dismissal or termination of an employee due to disablement [temporary, partial and total]

According to the Workmen's compensation act 1923, [section 3] it is unlawful to dismiss or terminate any employee for a disablement [temporary, partial and total] caused by an injury  during course of employment. Provided that injury out of an accident should result in the total or partial disablement of the workmen for the period exceeding three days.

Employer is not liable to pay any compensation to employee in case the accident was caused due to;
  • the contributory negligence on the part of employee when they were under the influence of drink or drug and the time of accident,
  • the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman or
  • the wilful removal or disregard by the employee of any safety guard, or other device which he knew to have been provided for the purpose of securing the safety of employee.

Amount of compensation to injured workman shall be payable as mentioned in the [section 4] of Workmen's compensation act 1923.