“It is the spirit and not the form of law that keeps the justice alive.” LJ Earl Warren
The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a new mechanism of dispute resolution that is non adversarial. A dispute is basically ‘lis inter partes’ and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR Mechanism.
Above link is a case of employee being terminated for being unproductive. The associate sued for wrongful termination, but was denied arbitration by the court as the contract of employment had already been terminated by the employer. The employee had continued working under an implied contract at will even after the termination; however, the earlier terminated contract was only considered.
As opposed to arbitration which is done by an arbitrator instead of a judge, and thus replaces the litigation process, mediation is relatively quick and inexpensive way of settling a dispute. There is no need to wait until a dispute results in a lawsuit and is sent to mediation by a judge. Pre-lawsuit mediation is becoming more widely accepted as a sensible way of resolving disputes before they turn into litigation.
Here is a similar case that I came across of employee termination that was settled outside court. The employee Rekha, who worked as a Senior Cargo Assistant in an XYZ company, was absent for work for a total of 317 days in the last three years. She had not produced any valid medical certificate. A mail was sent from the head of the department asking explanation of unauthorised absenteeism. Following which a mail from the head of HR stating that if explanation was not given in writing in 48 hours, the matter will be disposed off on merits. Both the letters did not get a reply.
Then a letter of termination was sent which was returned back. When she was emailed asking for a new address, she replied back that all her absence were informed, and she had submitted medical documents. Rekha then got back with another mail saying that she had other reasons to avail frequent leave. “The work atmosphere was not healthy for a female employee, and there was insecurity at work. In the past, I request you to transfer departments. I wish you give me another chance to prove myself as one of the best employee in the organization.”
As in the previous case, since the employment was terminated on grounds of continuous unauthorized absence, and no response from the employee, arbitration would have been denied. Here the company decided to settle the case by pre-lawsuit meditation.
Rekha’s claims of transfer request and insecurity at work were not able to be proved. However, considering her work experience of 8 years with the company a gesture payment of 2 months’ remuneration along with full and final settlement was made upon her acceptance of the cessation of employment.