Boss2966
Industrial Relations
Loginmiraclelogistics
Asso.prof.(commerce & Management)
Kishorkulkarni
Law Practice
SPKR
Consultant Trainer In Insurance, Adviser
Raajaramk
Self Employed
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
Samvedan
Consultancy_hr & Ir
Kknair
Hr, Ir, Law, Disc. Matters
Nkulsh
Career Management, Talent & Capability
Ravitashukla1
Sr. Manager Hr
+3 Others

Dear Seniors,

Need your guidance once again.

One of our female employee had to terminate her seven months pregnancy due to some reason. When this happened she just called in office and said that she is not keeping well and wont be able to come office but she did not confirmed how long she will be on leave.

During her break period she did not call a single time to the management regarding her health reports or to show her interest for re-joining.

After 2.5 months she called to join office back which we accepted.After her joining she did not submit any medical report or any leave application as in proof and we also did not ask thinking of her sad phase.

It has been 1.5 years now to this matter and she has resigned for better prospect.

She is asking us to provide experience letter for contineous period and literally fighting for it.

She joined on 03/01/2008

Was on break from 15/09/2011-30/11/2011.

Left organisation on 31.05.2013.

My query is this in her case,as per law shall she get experience letter for a contineous perios even though she was on a break of 2.5 month without proper intimation.

When we denied to give her experience letter , now she has brought us a letter from some Dr. stating that she was recommended for bed rest for that duration.

Please guide how to tackel this case.

From India, Mumbai
Dear Ravitashukla1

Its surprising and shocking, as well as sad, to find that even in such cases where the employee had such a traumatic experience; the HR or the Organization is being so insensitive or inhuman; even in case of issuing an Experience letter.

Was there any termination of services ??

Was not the employee eligible for MATERNITY LEAVE ??

Was she allowed Maternity Leave ??

Did she ask for Maternity leave, which was due to her ???

During her absence; THE REASON FOR WHICH IS WELL-KNOWN; was she ADVISED or COUNSELLED to avail of the Maternity Leave ??

After DENYING her rightful Maternity Leave (which is available for Termination of Pregnancy/Miscarriage), and now; for a mere absence of 2.5 months which is supported by Medical Certificates; the query is raised - Whether she can get an experience letter for the continuous period ??

If it is not UNFAIR, then what else can be.

Losing a seven-month pregnancy takes its toll, not only physically but as well as mentally and emotionally. A 10 weeks absence on Medical ground is neither uncommon nor abnormal. In fact, it would be in-Human to force someone to work under such circumstances.

Where is the question of any break in her service; when her unauthorized absence (though on justified Medical grounds) has been condoned and she has continued with her services ??

Hope, while trying to answer the above queries; you will find your answer.

I also understand that its beyond your sphere of influence to change things; however, you can at least let the management understand that denying her an Experience Letter, (without any break as her service was continuous) would be unfair and against the prevalent Laws; especially when she was denied any statutory Maternity Benefits.

Warm regards.

From India, Delhi
Hello,

I seem to differ from earlier response (from Mr. Raj Kumar Hansdah.)

I my view the employee's employment is CONTINUOUS but the experience is NOT.

The reasons for absence may be legitimate but the fact is she has NOT performed any work in her employment.

Therefore, the employer can rightfully deny issuing EXPERIENCE certificate for the ENTIRE period of employment and state the fact that for the period of absence the employee has NOT worked. While it would be employer's right to be brutal about the facts of the situation, one must consider if it is WORTH and NECESSARY to take a supposedly a "principled stand" or "high moral grounds" and act difficult.

A period of 2.5 months is too small period to make an issue of and if one still insists in doing so, then one must also evaluate quality and quantity of the employee's performance/contributions and be able state (for example) that the employment period was "x" years, work was performed for "y" years and the value addition was for "z" years. If one puts values to "x', "y" and "z", one may painfully realize that employment of FIVE years MAY show "quality contributions" amount for just a year or so!

All would agree, that this will be an entirely fallacious approach besides being unfair and extremely narrow minded.

I recommend that as Management and as HR, you should choose to be MAGNANIMOUS and IGNORE this small period (and her behaviour) from certifications, certified the total duration of employment and relieve her!

Regards

samvedan

October 11, 2013

---------------------

From India, Pune
In all cases Employer and Employee both needs to be responsible for their actions. To proof that the lady had some physical issues (even if not pregnancy) she must submit some document say medical reports.
If The Employer (HR) was aware that she had a pregnancy related issues that he should have advised her to opt for maternity benefits under applicable laws. HR's role is of friend, philosopher and guide. But in this case HR skipped all the three roles.
I would say both side played a dubious role and acted in an irresponsible manner and created unnecessary ifs and buts.
Still Employer should play a role of a Guardian and after giving a strict warning should give her the employment experience letter.
regards,
Kamal

From India, Pune
Though the employee did not follow certain procedural courtesies for taking leave, you have allowed her to report for duty and allowed her to work for 1.5 years thereafter and thus you have condoned her conduct gracefully and therefore it would not be befitting now on your part to pick on her lapses to deny her an experience cerificate and relieving letter, more so when she was absent just for about 2.5 months in a period of five years servcie.

Secondly, you can not treat a period f absence as break-in-servcie in law after condoning her absence and allowing her continuity of sevce. Thus it is not prudent not to include the period of absence in the experience certificate.Moreover an experience certificate is not an attendance certificate and it shall express an opinion on the general performance of an employee during his/her tenure Therefore I suggest that you shall continue to show the same grace which you have shown in condoning her absence in giving her theexperience certificate and relieving letter.

B.Saikumar


From India, Mumbai
Dear Ravita Shukla: Maternity Bennefit Act 1961 is applicable to you. I presume that the benefits undr the Act have not been claimed and paid for this period, although she is entitled to it Section 12 thereof clearly forbids employer to discharge or dismiss an employee who is under maternity leave. Now that you have received medical certificate it would be more than necessaryto regularise her absence of 2.5 months. Hence it would be proper to issue her experience certificate as sought by her. KK
From India, Bhopal
I agree with B.Saikumar
Also as per a latest court judgement unless a break in service is officially notified to the employee it will not be considered as a break in service. Just attendance not marked and salary not paid can not be treated as break in service

From India, Pune
If we will look into this matter on statutory grounds, she had already worked in a company for more than 80 days continuous service before going on maternity. As per maternity clause a lady can avail leave of 90 days and an extra month without pay if need is shown by the medical practitioner. In the above mentioned case the pregnancy was ruptured and the lady din't show the medical certificate from approved Doctor or even though she showed, it was too late.

Here the fault was from the management's end since medical reports should have been asked in the beginning. Or during the time she was not intimating her status, management should have sent letter to her within 30 days of her approved leaves terminated stating that her continuous absent could be treated as voluntary abandonment of services and with the expiry of last day to represent herself in your company a letter should have gone to her stating voluntary abandonment of services w.e.f date she had left organization. By this you should have complied with Section 2(OO) of industrial dispute act 1947 and clause 42(10) of indian standing order.

As if now there is no reason to brutalize the situation and management should give her an experience certificate, however in the experience certificate it can be mentioned that during the period of services the total no. of working days are as calculated by your administration and there was discontinuation of service for 2.05 Months. There is no statutory format for experience certificate. However this would be highly unethical and inhuman, since the period of discontinuation is not long enough and that too on maternity ground a lady had availed. We should not be inhuman and should provide her experience certificate.

With regards,

Rajesh Rajput

From India, Faridabad
As asked by Mr. Raj Kumar did she sanctioned with Maternity Leave as she is eligible to avail is a million dollar question.

If she is not aware of it, did HR department (on humanitarian ground) send an application for applying the maternity leave to her hospital where she got admitted for miscarriage. After back from leave the HR has failed to ask the leave application alongwith medical certificate to that effect and consider the same as maternity leave.

Did she get the pay during the period of break. If she paid for that period then it is considered as continuous service.

If she did not get her pay, then it is against the law i.e., not following the Maternity Benefit Act by your company.

If you want to escape from unwanted litigation, then you must issue the certificate for continuous service and close the issue amicably. If you are not issuing the certificate or issue the certificate with the break during that period, then it is clear evident that you are not following the Maternity Benefit Act.

Think wise and take needful action without further delay.

From India, Kumbakonam
Dear All

Many learned followers have given very valuable views. They have shown sympathy and concern about a female employee, motherhood, and the agony she had go through due to some medical reasons connected with her pregnancy. BUT Sirs, rules are rules and law is law, which has to be followed in all circumstances. We may have sympathy, but if law does not permit nothing can be done in black & white.

Now to the basic question. "Whether the relieved employee is entitled for whole period of experience certificate or not". Certainly, she is. She has been treated as on "maternity leave" for the period of absence. Even if it was not the case, if an employee has not been issued with any letter of discontinuance of service during his service period, the period of absence without pay would not amount to break in service as such she is entitled for experience certificate for the entire period for which she was employed with your organization. However, for the purpose of calculation of payment of Gratuity, the period of absence without pay is deducted from the entire period of service and gratuity is payable for remaining period.

Best wishes.

AK Jain

HR Personnel

NCL, CIL

From India, Jabalpur

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