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Do we need to pay salary for a staff who did not serve her notice period and also did not give her resignation letter. But, the staff keep on requesting her salary to be paid ?
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The basic tenet of the contract of employment is the offer for and the acceptance of work is for the consideration of remuneration or salary or wages. When the employee fails to fulfil his obligation of attending to his work, he can not expect or demand the consideration of salary/wages. That is called the principle of no work- no wages. So an employer need not pay salary to the absenting employee.
For which period is the staff asking for salary? Is there any period where she worked and has not been paid?
Hi Sarala,
As per any company or any industry policy, an employee needs to resign or intimate current employer that he/she is discontinuing from the services to get his/her salary.
And in regards to serving a notice period, it is also very important but this policy can be tweeked on the basis of mutual understanding between company & an employee.
on this basis salary should be released.
The follow-up question raised by our learned friend Mr.Rao is a pertinent one as it takes the discussion to yet another direction which is also possible in the case of an absentee employee. It is also presumable from the post that what the absenting employee asks is the salary for the period she had worked and the Management is under the impression that it is a case of abscondence and as such payment could be withheld to cover up her notice period obligations. Abscondence is a misconduct punishable under the Standing Orders. However, proposed or pending disciplinary action by the employer can not curb the right of the employee to salary for the period already worked nor it can dilute the duty of the employer to pay the salary.
Not necessary to release the pay as she is absconding. send her letter for absconding and get a reply / resignation. deduct notice pay if any and pay the balance.
Sorry, I am not able to accept the proposal suggested by Mr.Mohankumar. Resignation is voluntary termination of employment chosen by the employee on his own. It can not be thrust upon him just because he has been unauthorisedly absent without any intimation other than the request for disbursement of his salary for the period he worked. Withholding the salary of an absentee employee as a bait for compelling him to resign or adjusting it against his notice period obligation will be contraventions of the provisions of Sections 5 and 7 of the Payment of Wages Act,1936. The employer is, on the contrary, at liberty to initiate disciplinary action against the absconder and terminate him after due process of Law.
Since the employee has not tendered his resignation, he is still in employment until his service is terminated.
His service can be terminated due to habitual absenteeism but by a procedure of law. First, the employer needs to ask the employee to join duties (few times). If the employee does not respond, then issue charge sheet, initiate domestic enquiry and then terminate.
From the situation, it seems that the employee is still in service (though absent) as he has not yet tendered resignation.
Check my blog www.labourlawhub.com for more information on labour law related issues.
The company will have to pay the salary to the employee if she has actually worked on the days for which she is claiming the salary. The Company cannot adjust the notice period against the due salary to the employee. As regards not resigning, if the employee has not resigned and is remaining absent, the company can initiate disciplinary action for remaining absent unauthorisdly by issuing a charge sheet and holding an inquiry.
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