Kannanmv
Hr & Administration
Kishorkulkarni
Law Practice
Pon1965
Construction
Harsh Shukla
Ceo And Md Of 3 Uk Based Mnc's
Puneet.sarin
Manager-legal & Finance
+1 Other

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Dear Seniors,

My company has received a legal notice from one of our ex-employee who was terminated during her probation period due to her ill behavior towards her job. I would like to take some time of yours and will explain the matter in brief.

We are a Pvt. Ltd. company (registered under Shops & Establishments Act) in Bangalore. " Ms. xyz joined us at our Delhi branch on 11th June 2013 (on 3 month probation) and was given some tasks to perform. all of sudden she went missing from office without informing anything to anyone from 8th July. (I would like to tell that I am the only HR in this company and as I was on annual leave so I came to about the matter only when I was back). When I resumed on duty and found her absenteeism, she gave me an excuse that she got some medical problem for which she had to undergo an operation. I told her to apologize for her act (considering a female problem) and told her to provide the original bills and documents to support her sickness (Discharge summary, etc.). She failed to provide a convincing proof. (docs given by her was just a letter from doctor, which I am sure can be produced by any of us). She apologized for her deed and requested to increase the leave. I informed her about the pay cut as she is on probation. Then she kept on postponing her re-joining to work and finally came to work on 8th Aug 2013 without any proper proof of her absenteeism. Upon demanding a valid explanation she resigned and said that she does not want to work.

By this behavior of her's we told her to leave on the same day and provide a handover about the work done for past 2 months. Now we are in receipt of a legal notice from her asking for the salary of July (when she didn't come to work for even a single day) and for 8 days of Aug (wherein she she came only one day i.e. 8th Aug).

I need you valuable inputs on the matter mentioned above.

From India, Chicalim
Hi,

The reason for a probation period is for you to "try" the person and vice versa, termination of employment is allowed without repercussion for this very reason.

However, please ensure that your original offer letter mentioned the probation period.

You should respond to the legal notice; setting out your reasons as you have described them, your response should include copies of documentations and the written record of the conversations you had with the employee.

If you do have a written record then, please review your procedures to ensure that ALL conversations are written down and the employee is given a chance to read the record and agree that it is a true record by signing it off.

If the employee disagrees with anything that has been written down, then the disagreement must also be recorded and the employee be allowed to record their version, (which you may disagree with and record that also).

In light of your current situation, I am sure you can see the value of keeping records.

I hope the above helps.

Regards,

Harsh

From United Kingdom, Barrow
Hi Smriti !
To sum up, what I understood is-An employee went on long leave without informing anyone; with you coming back from leave, leaves were requested to be extended; she was informed of paycut then all of sudden she resigned and then you were served with legal notice.
Now what is to be done. Well, if she has served you notice, simply revert to that with reasons. Let she come back with another notice or revert to your reply to that notice. The action taken against her seems to be on disciplinary grounds which should hold good legally too. As she was on probation, please go through appointment letter. It must be having something in regard to this.
Would request you to kindly go through the appointment letter first before we can say anything further.
Also, as I said earlier, there's nothing to worry about the legal notice served to you and simply reply to that with reasons.

From India, Gurgaon
Dear Smriti,
Please do not get disturbed by the notice you have received. The notice- as put by you- is for claiming salary of July and August, which according to you is not payable. Just reply stating the facts of the case, mentioning her unauthorised absence on work and due to which how work was disturbed. Do reject in clear terms her claim of Salary and forget the matter.
Adv. K. H. Kulkarni.

From India, Kolhapur
Dear Smriti,

Carefully examine your offer of employment to the employee and ensure that you have mentioned the probation period and termination of employment during the probation period. If you have mentioned that her services are terminable without assigning any reason and without any notice period, then in my opinion you are on strong ground. However, in this case she has chosen to resign, but did she seek a relieving immediately or at a prospective date is not clear. If she has sought relieving at a prospective date and you have unilaterally decided to relieve her with immediate effect, it could be a cause for concern.

Generally, when employees submit fake evidences it is advisable to write to them seeking proper evidences. Does your company have a standing order applicable, if so you may have some clauses applicable for termination of employment.

If she has submitted a letter from a doctor, you could have written to the doctor seeking confirmation of her sickness stating that it is required as a documentary evidence by your company relating to her employment. This is because when doctors are confronted and if they have given a false certificate they will not respond. But it was genuine they will respond stating that it was genuine sickness.

If she has undergone a surgery as stated by her and if she had mentioned the hospital, you can verify with the hospital to ascertain if such a patient was admitted/ treated on that particular day.

Consult your legal counsel on this matter before responding as she has served a legal notice.

M.V.Kannan

From India, Madras
There are many lawyers who collect some Rs.200-300 from the gullible persons without going thru the merits and sending legal notice on behalf of the Clients. Do not get perturbed. Keep your records and send the reply asking for compensation for damages.
Pon

From India, Lucknow
Dear Seniors,

Thank you all for your valuable and useful suggestions. As inquired by few seniors, I would like to inform that our appointment of letter clearly mentions about the Probation Period (i.e. 3 Months) and it also says the confirmation of any employee completely depends on once performance and the management's decision. To inform you all, It also says that the company reserves to itself the right to terminate an employee's employment forthwith, at any time, without notice or compensation in lieu thereof if found guilty of gross insubordination, insolence, neglect of duty and dishonesty.

It also says that "Loss of confidence by the management shall be considered inter-alia, a valid ground to terminate your services without assigning any reason". Absence from duty for 7 consecutive days without obtaining prior permission shall entitle the Management to treat the absence as abandonment resulting into loss of service.

Also, I would like to inform that the ex-employee has signed on the apt letter copy and I also have evidence (emails) to proof that she was guilty and was warned by the management.

Regards,

Smriti

From India, Chicalim
Hi Smriti !
With the new facts, you seem to be adequately covered. So simply reply to the legal notice received by you denying eligibility of any salary. But make sure you don't put in anything related to termination clauses, as stated above, which will be good defense for you at latter stage.
So keep all the favorable points with yourself and simply reply to that letter casually with reason for not paying up dues and instead ask for compensation for loss to the company. Needless to say, do approach a good lawyer in drafting that revert for you.

From India, Gurgaon
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