Asked to resign- Can it be considered under termination or voluntary ?

I have been asked to resign from my post, in an IT company.
During the call, initially the reason was told as 'down sizing'. And in last 5 seconds of the call. "Performance issues" was introduced.
Now the company Policy says in case of termination no leave encashment will be provided. And during the call to discuss encashment, the HR said your case is of termination as we asked you to drop your papers.

my question:

A) does asked to resign falls under termination or voluntary resignation l?

It is constructive Dismissal. (When an employee is force to Resign his job against his will, because of their employer's direction or conduct.)

You can ask for a day or two to weigh your options. This will save you from signing any document without carefully vetting it, and help you reach a decision that will benefit your career better.

While employees who ‘resign’ usually are not paid severance packages (which usually included a few months’ pay and benefits), but if you are being compelled to do so, it is reasonable to at least make a request for it.

The best way to proceed is to understand what is best for you and your future, and ensure minimal damage is done. Making hasty or rushed decisions or reactions at this junction might do more harm than you anticipate.

Regards
Vijay

'Asked to resign' is not a terminology accepted by any law. Companies do this just to avoid legal complications of termination. Obviously, in order to terminate an employee a lot of procedures are required to be followed. In order to avoid such procedures and legal battle, they ask the employees to resign. It is a mutual separation. Under mutual separation, both the employer and employee will be negotiating the terms to arrive at a solution.

If the performance has been the reason for termination, the employer should establish that you were not performing. For that, solid evidences of performance card, evaluation of your performance, recommendation to undergo Performance Improvement Plan (PIP), evidences of training program offered etc should be available. An employee cannot be asked to go in a fine morning citing the reason that he is not performing.

Coming to the other reason cited by the employer, ie, redundancy, I would like to say that the employer has to follow the procedures laid down in the Industrial Disputes Act to terminate employee on account of redundancy. It should be the last employee employed in a particular department who should be retrenched first. The employer cannot pick and chose to terminate. Certainly, in the case of managers (not by designation but by function) these laws will not apply.

Therefore, before putting the papers, get these details clarified. They cannot say that performance as the reason. If they say like that, your career will be spoiled. If you were not put under PIP, certainly, you should question it. If they say 'downsizing' as reason for termination, then you should say that the last person should be sent out first and they cannot pick and chose employees. Then they will agree for a Mutual Separation.

Coming to leave encashment, I would say that, as per law, an employee discharged from service for whatever reason, whether by his resignation, termination, the unavailed earned leave should be allowed to be encashed. Your HR person has not read the law properly. Ask him to read the Shops and Commercial establishment Act.

Resignation means employee leaving the company willfully for future prospects.

Termination Clause is for Misconduct / Non Performance and other issues. when organization don't want to continue with employee. ( If its Misconduct - then company will issue warnings letter before termination , In Performance- PIP will be issue for improvement )

For any further query, Please call or what's us on 9873674866

Thanks for your insights guys. I've resigned already, now while clarifying the encashment part this thing came up. Hence I came here for advices. I know there are people who can share their valuable insights and hopefully this post will become a helpful resource to future searchers.

On call HR is constantly assertive of "we have asked you to drop your papers will be considered under termination na" we want to terminate you, so we asked you to drop papers... And as per company policy, in termination no leave encashment is given.

Now i am blank on what should i do in this case.

I think I have clarified my opinion on the issue in legal as well as practical framework. If the HR is saying that on termination, no benefits like leave encashment is available, he is wrong. he should read the law first before saying that on termination leave can not be surrendered but it is available only when the employee resigns. Now, if they are saying that you are asked to resign and it is equal to termination, they themselves are admitting that they have terminated you. Then my question is on what ground you have been terminated? Whether the procedures to be followed to terminate an employee has been followed? Whether you have been given a charge sheet? Whether any enquiry is conducted? Simply by saying that they do not like you, they cannot terminate you. They should follow the minimum protocol of giving the employee a notice or payment of notice pay as per contract of employment.

It is unfortunate that your HR Manager is living in a world of dreams without realities on place. It is unfortunate that he has not taken any advice from the seniors or group like this. He is doing all these on the faith that you (or any other employee) will not move against him or the Company because they can blacklist or put negative comments on your service records which will cause irreparable loss to you in future. This attitude should be changed. The background verification is a dangerous weapon. But if you are ready to block it, there are ways to make the employer and the illiterate HR Manager know the reality.

If it was in performance basis then i was not informed that your performance is low. In quarter assesment, verbally the manager would have pointed out things which were more of "showing the dark even if it's sun". No emails on performance are received, I wasn't put on PIP.

In IT companies this is common practice, as they want to save as much as they can.


I don't think after asking them about warning mails or pip they would say anything and give me the leave encashment.
But there is always a senior HR that may interfere if the junior HR fails, and directly the senior HR will say no.

Then the only remedy available is the intervention of the Labour Officials. People will normally waive off the amount due just to avoid complications that may arise in future because of such interventions. But the HR/ Senior HRs do not mind it until they are called to the Labour Officer's chamber. Once they go there, they will study what is law and will stop doing such injustice to their employees. After all, by allowing leave surrender, what they lose from their pockets?

I don't know. Let me take the conversation over email and discuss.

So to asking employee to resign (due to termination factors), employee must get emails related to that first, verbal communications too must be drafted in email and sent.

Right?

No. Normally, no employer will send an email asking the employee to resign because if he does so, that will become an evidence that the employee has been asked to go. Instead, the employer will only tell the employee verbally that he should go. Once he puts his papers, it will be the employee regarded as an initiate from the employee to leave. Then there is no legal issues involved, and the employer can settle the accounts which shall include salary and the leave balance, whatever is available. But your employer or the HR is saying stupidity. They are asking you to resign and at the same time saying that in records it would be construed as termination and on termination the employee is not paid any leave balance. The latter part is against the law, any way, and it will not work as per his decisions, but the former part, that resignation will be treated as termination is stupidity. When an employer is not happy with an employee, he can ask him to go. He should have the courage to terminate the employee after following the protocols involved. No law will say that an employer should keep a non performing employee in service. he can terminate him. But it should not be done in a fine morning. he should have given the employee at least reasonable opportunity to improve his performance. For that the employee will be put under PIP. After a few months, say six months, again his performance should be evaluated, and still if he is not performing he can terminate him by paying as per the provisions in the contract of employment or the certified standing orders. Normally, when the employee is ready to go, whatever benefits is payable will be paid in full. There will not be any bargaining. Simply, if the employee who is to be eliminated himself is ready to go they will not look into other issues, but they will just allow him to go. They cannot eat the cake and keep cake. Your employer wants to eliminate you, but at the same time, will not tolerate on compensation or other payments. That is what I have said that your HR is stupid one.

You need not expect the Hr to send a email saying that you should resign. But if you do not resign, they can send a termination letter. Again, you can defend that termination by moving against the company saying that there is no reason for termination. As far as possible, avoid termination. It will lead to unpleasant situations both for you and the company. The company will, in turn, take it against you and spoil your career. therefore, it is upto you to decide, whether you should fight for the leave surrender salary and subsequently spoil your career or just leave it and find some other job.