I am a part of a software firm MNC headquartered in Maharashtra that has a notice period of 3 months.
One of our employees resigned on basis of personal reasons and mentioned his last day to be 10 days later. On 14th day, he sent an email saying he cannot continue and left.
He also mentioned that he did not have any pending handovers and company properties and asked to do his fnf by taking salary in leiu of remaining notice.
We have sent him show cause notice 2 times and he replied back saying that he has already resigned and wants us to relieve him and we are harassing him by forcing to join back when he is ready to pay the notice pay.
We do not have notice buyout policy.
I want to terminate this employee to set an example but have a few questions
1. What can he do legally in this case?
2. Can we terminate him on grounds of unauthorized absenteeism?
From India, Mumbai
One of our employees resigned on basis of personal reasons and mentioned his last day to be 10 days later. On 14th day, he sent an email saying he cannot continue and left.
He also mentioned that he did not have any pending handovers and company properties and asked to do his fnf by taking salary in leiu of remaining notice.
We have sent him show cause notice 2 times and he replied back saying that he has already resigned and wants us to relieve him and we are harassing him by forcing to join back when he is ready to pay the notice pay.
We do not have notice buyout policy.
I want to terminate this employee to set an example but have a few questions
1. What can he do legally in this case?
2. Can we terminate him on grounds of unauthorized absenteeism?
From India, Mumbai
Dear Vikram,
You have already issued him the two show cause notices. Now all you need to do is issue him a letter , declaring , his name would be removed from the company rolls. However his release would be due , till he clears all his dues.
Please mention the dates of the other letters issued to him and the fact that he didn't respond.
Offer him 2-3 working days to revert on the receipt of the letter.
Hope that helps
From India, Mumbai
1858You have already issued him the two show cause notices. Now all you need to do is issue him a letter , declaring , his name would be removed from the company rolls. However his release would be due , till he clears all his dues.
Please mention the dates of the other letters issued to him and the fact that he didn't respond.
Offer him 2-3 working days to revert on the receipt of the letter.
Hope that helps
From India, Mumbai
Thanks (Cite Contribution), However, he had actually replied to both the notices. Can we term it as he didn’t respond in the letter. And can he go legally against us for this false statement.
From India, Mumbai
From India, Mumbai
My apologies, I missed the point that he had responded. Please mention he needs to complete the formalities . Is there any reason why you cannot allow a buy-out .
Since he has already offered it from his side , you have little to hold on?
He has already declared handover of company properties and all his duties. Hence , you are not left with any choices, please relieve him . Considering the notice pay might cut your losses .
From India, Mumbai
Since he has already offered it from his side , you have little to hold on?
He has already declared handover of company properties and all his duties. Hence , you are not left with any choices, please relieve him . Considering the notice pay might cut your losses .
From India, Mumbai
Dear Vikram,
You are clubbing two issues. One is unauthorised absence and second is resignation. Both need to be seen independently. Submission of letter of resignation does not give license to abscond to any employee. Terms and conditions of employer-employee relationship are outlined in the appointment letter. These are obligatory to both the sides.
I recommend you conducting the domestic enquiry and then terminate the employee. Sending two show cause notices is not sufficient for termination. If absconding employee fails to depose before the enquiry, then your management can take ex parte decision to terminate the employee.
Thanks,
Dinesh V Divekar
From India, Bangalore
You are clubbing two issues. One is unauthorised absence and second is resignation. Both need to be seen independently. Submission of letter of resignation does not give license to abscond to any employee. Terms and conditions of employer-employee relationship are outlined in the appointment letter. These are obligatory to both the sides.
I recommend you conducting the domestic enquiry and then terminate the employee. Sending two show cause notices is not sufficient for termination. If absconding employee fails to depose before the enquiry, then your management can take ex parte decision to terminate the employee.
Thanks,
Dinesh V Divekar
From India, Bangalore
Hello Vikram,
(Cite Contribution) & Dinesh have given you valid & practical suggestions on how to handle the situation you mentioned.
However, I would like to highlight the other side of the coin--so to say. Many IT Companies, including yours' like you mentioned, have enhanced the Notice period from the typical 1 month period to 3 months in the recent past--JUST TO CONTROL ATTRITION [at least that's the perception]. But I am not sure how many actually think of such a step becoming counter-productive--like it did in your case.
Realistically, does it really take THREE months for any company to complete the KT or find a replacement? Except in senior and/or critical roles/levels, I don't think it should. If it indeed does, then there's something wrong with the set-up in that company.
Does the company really expect the employee giving off his/her best for those 3 months? Basic human psychology says he/she WON'T have the same level of commitment during the NP. It would be this particular aspect that makes the individual counter-productive for the function & the organizational psyche, as a whole.
Food for thought I guess.
Rgds,
TS
From India, Hyderabad
(Cite Contribution) & Dinesh have given you valid & practical suggestions on how to handle the situation you mentioned.
However, I would like to highlight the other side of the coin--so to say. Many IT Companies, including yours' like you mentioned, have enhanced the Notice period from the typical 1 month period to 3 months in the recent past--JUST TO CONTROL ATTRITION [at least that's the perception]. But I am not sure how many actually think of such a step becoming counter-productive--like it did in your case.
Realistically, does it really take THREE months for any company to complete the KT or find a replacement? Except in senior and/or critical roles/levels, I don't think it should. If it indeed does, then there's something wrong with the set-up in that company.
Does the company really expect the employee giving off his/her best for those 3 months? Basic human psychology says he/she WON'T have the same level of commitment during the NP. It would be this particular aspect that makes the individual counter-productive for the function & the organizational psyche, as a whole.
Food for thought I guess.
Rgds,
TS
From India, Hyderabad
Dear Sir,
I here differ little-bit. Have you conveyed your acceptance of resignation to the employee and informed him relieving date(whereas employee has given you resignation and his date of last working day and thereby his intentions are clear). If not, then his resignation is sufficient and thereafter no action on the part of the management is called for. Notice period or notice-pay in lieu of notice period is sufficient I ask a question, if management dispense with services of an employee while giving notice-pay but employee ask for service and not for pay (just for the sake of experience or certificate) then would you allow him?
When he is ready to pay notice-pay, there remains no question to answer. Thereafter any action will not stand the scrutiny of law. I understand there will be no misconduct in the Standing Orders or terms of appointment that if any person left his job in the manner as explained above. When this is so, what for domestic enquiry.
Employee relation with employer is to work for payment and with resignation/termination, it stands broken and thereafter remains no relation and also none can force other to work even for money. Your action to terminate to set an example is not positive thinking and will just create litigation for both the parties.
Kindly don't take my opinion otherwise.
Thanks
V K Gupta
From India, Panipat
I here differ little-bit. Have you conveyed your acceptance of resignation to the employee and informed him relieving date(whereas employee has given you resignation and his date of last working day and thereby his intentions are clear). If not, then his resignation is sufficient and thereafter no action on the part of the management is called for. Notice period or notice-pay in lieu of notice period is sufficient I ask a question, if management dispense with services of an employee while giving notice-pay but employee ask for service and not for pay (just for the sake of experience or certificate) then would you allow him?
When he is ready to pay notice-pay, there remains no question to answer. Thereafter any action will not stand the scrutiny of law. I understand there will be no misconduct in the Standing Orders or terms of appointment that if any person left his job in the manner as explained above. When this is so, what for domestic enquiry.
Employee relation with employer is to work for payment and with resignation/termination, it stands broken and thereafter remains no relation and also none can force other to work even for money. Your action to terminate to set an example is not positive thinking and will just create litigation for both the parties.
Kindly don't take my opinion otherwise.
Thanks
V K Gupta
From India, Panipat
Dear Mr Gupta VK,
I recommended conducting domestic enquiry because labour courts have given ruling 'n' number of times for restoration of services since no domestic enquiry was conducted. Though I have not done graduation in law, I read magazines related to labour cases. My statement is based on my reading.
Domestic enquiry is part of principles of natural justice. Courts are very strict about following this. Yes, you may terminate employee without enquiry also but then by chance if the aggrieved employee approaches court then the company must be in position to prove validity of termination without conducting domestic enquiry. This is invitation to yet another headache.
Sometimes employees are terminated for misconduct or even poor performance. For this employers force the employee to put in papers. They do not conduct any enquiry. In such cases when employees approached labour courts, the courts have ruled in favour of employees and told the employers to restore the services with back wages.
Conducting domestic enquiry does not take that much time. Secondly, it acts as deterrence as well. By chance if the defaulting employee wants to knocks the doors of the labour court, his lawyer (if he were sane) would desist him from filing suit.
From the organisation's culture point of domestic enquiry is also important. "Upholding justice" is value and it is practised in action by conducting enquiries and then terminating the employment. Enquiries are discussed in informal communication amongst the employees as well. "We give complete freedom to express views in the enquiry" this message is sent to one and all.
Coming back to our own judicial system. Everybody knew well that Ajmal Kasab had killed people. There was sufficient evidence to prove that. Did it mean that we did not run his trial? He was give complete chance to prove his point. That is the strength of democracy is. While spending millions on such scum bag jarred us, it upheld the image of our country in the world. Route of law slows our speed but it is steady and certainly not bumpy.
Thanks,
Dinesh V Divekar
From India, Bangalore
I recommended conducting domestic enquiry because labour courts have given ruling 'n' number of times for restoration of services since no domestic enquiry was conducted. Though I have not done graduation in law, I read magazines related to labour cases. My statement is based on my reading.
Domestic enquiry is part of principles of natural justice. Courts are very strict about following this. Yes, you may terminate employee without enquiry also but then by chance if the aggrieved employee approaches court then the company must be in position to prove validity of termination without conducting domestic enquiry. This is invitation to yet another headache.
Sometimes employees are terminated for misconduct or even poor performance. For this employers force the employee to put in papers. They do not conduct any enquiry. In such cases when employees approached labour courts, the courts have ruled in favour of employees and told the employers to restore the services with back wages.
Conducting domestic enquiry does not take that much time. Secondly, it acts as deterrence as well. By chance if the defaulting employee wants to knocks the doors of the labour court, his lawyer (if he were sane) would desist him from filing suit.
From the organisation's culture point of domestic enquiry is also important. "Upholding justice" is value and it is practised in action by conducting enquiries and then terminating the employment. Enquiries are discussed in informal communication amongst the employees as well. "We give complete freedom to express views in the enquiry" this message is sent to one and all.
Coming back to our own judicial system. Everybody knew well that Ajmal Kasab had killed people. There was sufficient evidence to prove that. Did it mean that we did not run his trial? He was give complete chance to prove his point. That is the strength of democracy is. While spending millions on such scum bag jarred us, it upheld the image of our country in the world. Route of law slows our speed but it is steady and certainly not bumpy.
Thanks,
Dinesh V Divekar
From India, Bangalore
Dear Mr. Vikram. Since the employee has resigned on
personal reasons and intimated
his last day will be after
10 days, no action can be
taken on the individual with the plea under unauthorised absence. In case any handing over forma-
lities are left, then action would have been
different. The only thing is either to wait till the
completion of the ntice
period and accept his resignation and relieve him
after working out the final dues. There is no need of domestic enquiry in this case\' In case the individual realy in need of relieving order, he can
approach the ACL/DCL for
directives. So, suffient
proof is not there for ternination of employment by the Management, Infact the individual has rightly terminated his employment
by submitting his resignation.
Eswararao Ivaturi.
From United States, Cupertino
personal reasons and intimated
his last day will be after
10 days, no action can be
taken on the individual with the plea under unauthorised absence. In case any handing over forma-
lities are left, then action would have been
different. The only thing is either to wait till the
completion of the ntice
period and accept his resignation and relieve him
after working out the final dues. There is no need of domestic enquiry in this case\' In case the individual realy in need of relieving order, he can
approach the ACL/DCL for
directives. So, suffient
proof is not there for ternination of employment by the Management, Infact the individual has rightly terminated his employment
by submitting his resignation.
Eswararao Ivaturi.
From United States, Cupertino
It is not clear what action was taken on resignation. Immediately on receipt of the resignation letter he should have been served reply letter either of acceptance or non-acceptance of the resignation. Non-replying after receipt of the resignation letter also amounts to acceptance of the contents of the letter. In the letter he has mentioned to relieve after 10 days. Hence no question of absence would arise, if it was not indicated him to serve notice period. Moreover as already pointed out by Mr. Tajsateesh, no useful purpose would be served when his mind is not on continuance. Issue of show cause notice and domestic enquiry would arise when there was no communication from the employee.
M.Venkatraghavan
From India, Selam
M.Venkatraghavan
From India, Selam
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Employee Appraisal Form new.doc