Partner - Risk Management
Process Industry Consultant / Soft Skill
Recruitment/talent Acquisition, Career Counselling
Ir, Er, Payroll, Recruitment,
Rakesh Pd Srivastav
Chief Manager - Hr (plant Head Hr)
What this employee has done is a misconduct that resulted in loss to the company
Get the details of it recorded in your internal files
The company can hold her salary.
In fact, you can have your lawyer send a notice of recovery of cost / losses from her.
The above is the substance of the matter, it would make sense for you to ask your company lawyer or an expert in labour law to help you prepare for the case, including preventive measures that you may need to adopt.
Further, whether she can approach the labour officer will depend on what act your organisation is covered under and what was the position of the employee in question (covered as worker or not, etc). Your course of action also depends on that
6th October 2012 From India, Mumbai
7th October 2012 From India, Selam
The Employee in question did what we all call it very unprofessional and unethical in our corporate world. She was on probation and was under the obligation to serve 15 day's of Notice Period or pay 15 day's of salary in lieu thereof (which doesn't find mention in your text). Technically, she can leave the job without waiting for her resignation to be accepted and get 15 day's of salary to be deducted from her full and final account (Resignation can be submitted through email /post while a person is away from his/her work place and is not in a position to come to the work place due to illness or any other situation beyond his or her control).
As stated by you, it is difficult for your management to prove that all important data have been deleted by her. Secondly, if the matter goes to court and court takes her side by telling the management to reinstate her as she claims that her resignation was a forcible one. Under the circumstance, your management will be left with no option other than taking her back in the service which I am sure your Management will not be happy to do as the Employee has a doubtful credential and integrity. Your Management will also never pursue the matter as a case of abandonment as she left the job without waiting for her resignation to be accepted.
Best option, in my opinion, is to relieve her with immediate action and deduct whatever amount is legally due for recovery. In case of any further clarity, pls feel free to ask.
Rakesh Pd Srivastav
8th October 2012 From India, Gurgaon
Though, it seems that she has not followed the protocol, it will be HR responsibility to clear the case dues. Company can't just hold on the payment for 2 months, if it is not mentioned in the contract.
Also, organisations are required to reply on resignations within a specified period. If it is not done, then if employee calls it forceful resignation, HR will have no documentation to prove otherwise. Did HR issue a letter specifying about acceptance/deniel about her resignation? Was there a reason given?
'Deleting company property data' is a serious accusion. HR should confirm with IT department before making such accusitions.
What was the 'value' of the data deleted by her?
Was it a IT policy to keep company data on personal / local PC? Was it not stored on seperate server (With access control) & have backup as per quality protocols?
Did she delete the data from server/backup or just the personal copies from her local machine? If she just deleted the local copies, then actually she is 'following' the IT policies.
HR can claim the 'no proper handover', but cannot hold the payments for longer than 15 days (If that is mentioned so in the contract).
Actually, sometimes HR goes so much into making an example, that they forget how far they should go!
This thing should be cleared with mutual communication, but in many of the companies HR tries to avoid it as much as possible. Then in some genuine cases, the employees are forced to do such things. Was this one of such cases?
I think better thing to do will be to:
1. Set up a meeting with her
2. Ask her to complete the handover procedure
3. Explain to her the importance of clearance / experience letter for her, as well as importance of handover procedure to company
4. Discuss transperantly & professionally the deductables from the pay as per contract.
5. Issue the remaining payment & finish clearance procedures
This will not only clear the matter, but will also give her confidence in the HR processes, & she may probably be more faithful to her next employer.
Also, this will set a better example to all other employees in the company, than to see her punished legally into court.
8th October 2012
Further to what the other members suggested, pl check-out if any of the data she deleted was of ANY TRUE VALUE to the company.
Apart from the technicalities [she not handing-over properly, deleting the data, etc], suggest make a cost-benefit analysis of what would it cost the company IF you went legal. If you think it's worth it, suggest begin the legal proceedings.
In a nutshell, this employee seems to be 'over-smart' rather than 'smart'. She seems to be banking on a 'presumption' that the company won't/can't go legal.
There's another reason why I think you shouldn't let this go unchallenged--especially if your company strength is high. This COULD set a PRECEDENCE FOR OTHERS to follow suit--hope you get what I mean. I guess you could make this a criminal case too, rather than just a civil case.
Also, w.r.t. the suggestion of Rakesh Pd Srivastav--that your contention(s) could be tough to prove. In a way, he is right. But so too would the same apply to the employee. For eg., she doesn't have the formal Acceptance Letter from the company, even if her version of 'forcible resignation' is taken for granted--which is likely to go against her in the court. Your advocate can come-up with more such points.
Usually, it's more tougher for an individual than for a company to handle things legally in the long-run--given the time, effort & expenses involved [more so the time part, given that cases drag for years in India].
And in case her next/future employer(s) get to know of the fact that she's involved in such a case, it could be tough for her to settle in any job.
All the Best.
8th October 2012 From India, Hyderabad
She has resigned on her own?? There is something behind all the facts and unless you can disclose the case completely, you may not
get right adviice
8th October 2012 From India, Chennai
This kind of acts can happen only when the employee in in hypertension or in temper or when she is psychologically disturbed..
Donot only think in a one way... but go around the bush for such an impact from her..
What exactly was her psychological condition at that moment.. check her call records.. check for any unpleasant incidents that would have occured for her to behave in this manner.. which can lead us to a better solution and better manner to handle this case...before taking any unwilful and unpleasant decisions...
8th October 2012 From India, Bangalore
Now this is how her resignation goes -
I would like to resign from my position as Designation with Company's name
It was a pleasant & wonderful experience working here . Thank you very much for the assistance, guidance and mentoring provided till date.
I wish Company every success in the future."
I don't understand why is it not important to receive acceptance over this and why should we clear her claims by deducting 15 days notice pay. What if the work hampers during her absence in that critical role.
Again, she has tendered the resignation from office at the Closing hours which means she was neither ill nor in a situation wherein she cannot attend come to office.
And, with this kind of resignation, how does is that she can prove that it was a forcible resignation? Why would court take her side like you mentioned.
8th October 2012 From India, Ahmedabad
Yes the non acceptance of the resignation was informed to her with reason. Just that, because of the misconduct company did not want her to come back and serve notice. It was even told her that we shall make payment of 15 days (half month salary) but she is not agreeing to it.
And all the efforts have been made - F2F communication, understanding her viewpoint, making her understand the company policy etc...
With such intention, I do not feel that she'll be loyal even with new employer as this issue is with integrity moreover then anything else.
8th October 2012 From India, Ahmedabad
I have a few observations.
The text of resignation shown within inverted commas
does not specify the effective date of resignation. It is an incomplete resignation letter.
It is mentioning only the intent to resign.
The letter also does not mention the commitment from her side -
probation period/ notice period/whether she would pay in lieu of 15 days etc
When you gave appointment letter, did she give acceptance on the duplicate copy.
The conditions of appointment order ( accepted) are very important.
As already mentioned if it is not worth fighting it can be settled.
But before that all other employees should know that things cannot be taken for granted.
A strong letter from HR should be sent stating that the company would soon send a counter legal notice.
As a part of the letter that would be sent to the employee in question, reasons
for not paying the salary could also be stated.
V.Raghunathan..................................... ..........Navi Mumbai
8th October 2012 From India
1. That's true. It is just on the grounds that the mail was dated 31st of the month at closing hours we presume it to be that. Now is it a valid thing to do? Does this resignation serve her purpose of claiming forceful resignation or does it favor company?
2. Which means it is not a forceful resignation. Basis this it is very clear that her intention was to intimate (so that it does not amount to absconding).
3. Ofcourse, she was not willing to do so & that's why it is not mentioned.
4. Yes that is already there with the company.
5 & 6. The point is she does not want 15 days salary. Instead the notice from her mentions 2 things;
a. Salary for the entire month she served
b. Notice pay for 15 days which she did not serve
Isnt it too much for her to do. Let me also clarify that the 15 days notice mentioned by the company as a part of appt letter is the maximum days. Till date, on the employees request it has always been shortened to 2 to 3 days. We plan the entire handover process accordingly.
This is very well intimated to all the leaders & further to all employees.
Should the company still settle the amount of 45 days or not?
9th October 2012 From India, Ahmedabad
It's good to see your replies to all comments.....
If all your replies are genuine, then following possibilities can be deducted:
1. She did not want to abscond to start with. If it was not forced resignation, then it must have been based on personal reasons, which she may not want to disclose. It is clear, that she did not care about the salary much, when she resigned.
2. In your reply to her absence/resignation, did you mention to take legal actions (Especially for 'deleting company data')? Then she must have seeked legal help.
2. It looks highly possible, that she is following advice from a legal person (A friendly lawyer maybe), who assured her to get her the full pay, if they pose it a forced resignation.
3. If that is the case, you will have to respond legally (With a counter legal notice as reply to her e-mail), just to clear that if needed, you will agree to take the matters further.
It is unfortunate, but sometimes unavoidable....
Involving legal consutants / lawyers in such small matter (only a month's salary on issue) will complecate matters for both parties; Also end up costing in terms of time & money for both...
But the one who engages this route first, drags the other party in to it; & must also be ready to face it until the final result.
Best Regards & Best of Luck!
9th October 2012
The employee concerned(being termed as such for want of acceptance of the resignation) has committed a grave act of misconduct. Whether or not the pc contained a classified/ important information she had no business to clear the entire data. Further, she was not an unskilled worker hired from the street to work in the house hold who, one day, decides to quit the job and stays off without pre-informing the house hold of her intention not work there any more. She was an employee properly employed and governed by interalia the conditions of the letter of appointment hence will not within her right and duties to quit the job one day on her whim. Moreover, she is not the deciding authority as to the nature of official information stored in her pc which needs to be retained or trashed.
Please place all facts before your lawyer/ labour-law advisor or law department and have prepared and sent to her per registered post a comprehensive letter addressed to her as to the losses and inconvenience sufered by the management and have rightly withheld her payment to adjust against the notice pay and also towards meeting her liabilities to the management.
Rest assured she cannot claim her unpaid wages/pay in the above circumstances.
9th October 2012 From India, Delhi
In that Show cause notice, and also demand for the reasons ""Unemployment case, due claims due to forcebale resignation obtained by your Company" for this statement and people responsible for the same.
After that notice, conduct an inquiry like a meeting, with her alone and with the related management members, write down all the points discussed and take the signatures of the 2 witnesses atleast. At this stage,all the confusions must have been cleared, if the management feels the case if genuine and has no important data was available if available make her responsible, legally, to create such data or pay the compensation.
Next stage, if the results are positive go for F&F otherwise, make her legally bound to stay her attached to the company till the company is compensated in anyway either the data covered or damages paid......
It is not mandatory to hire an Advocate for this. And this simple procedures is always legal, safe, less cost and time and beneficiary to both in all the ways....... And send her the notice through the registered post immediately you see this reply to avoid the matters getting complicated and evidences being manipulated........
(you need not worry about the language of the notice as far as the matters are clears as you needed would do....... any amount of delay is not encouraged.....)
Beyond this if you need assistance during the inquiry you may feel free to send me a mail to , .........
9th October 2012 From India, Bangalore
She is not in a big position and the Company should not get perturbed on this issue. I get a feeling ...not based on facts you had been giving but based on my gut feeling on your prompt responses....that the Company did not want her and ensure that she gives her resignation. It could be the Company or her boss,
I have in the past handled a few cases of resigned employees going to court. I have never made any out of court settlement for them. The language is ok and whatever may be the facts, plain reading gives that she has resigned on her own
Relieve her as per norms of the Company. If she has to give 15 days salary in lieu of notice deduct from her. There is also another way of handling it
1. Date of resignation 30th of the month
2. Not coming thereafter
3. Has to give 15 days Notice
4. relieve her effective 15th of next month therby show that she has served notice period
5. If she has earned Leave to her credit treat this period as on Paid leave to the extent of the number of days she has credit.
6. If she does not have leave. treat it as on loss of pay
I do not undestand where from she can claim 45 days salary If you have already paid her salary for the previous month. then there is no claim If you have not paid then better to pay immediately
She can not claim 15 days notice pay from the company for forceful resignation However if she has leave, which in any case need to be encashed can be adjusted against Notice Period and her salary paid for that period. If she has no leave, then leave it
12th October 2012 From India, Chennai
I completely missed your suggestion all these days, apologies. Well, like you rightly said we have sent her a notice saying that the company is ready to pay 15 days salary (30 days was her presence less the notice pay which company has the right to adjust against notice period). Well she didn't have any leave balance to her credit. It is her call to accept or to go to labor court. Any which ways, company is not going to pay her either 30 days or 45 days salary. We've roped in a lawyer as well.
Thanks for your suggestion.
18th October 2012 From India, Ahmedabad