Nilima20Need guidance to setup a process for settlement and closing account for absconded employees in a IT organization. After systematic follow-ups and notifications, when we terminate employee for being absconded, can we ask for notice pay recovery ? Please comment.
In a scenario, if employee is on leave with some genuine reason for sometime and later on send resignation. After contacting for further explanation he denied to serve notice period and also not ready to pay the recovery amount. so how this case can be treated as it can not categorise either abscond or misconduct. Please share your views on the same.
From India, Nasik
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Labour Law & Hr Consultant
Labour Law Advocate
riteshmaityThere is no word as "absconding" under any labour Acts, although this term is widely used. If you look clearly, absconding is derogatory word when it comes to labour laws. However, it can be treated as absent without permission and/ or approval.
Anyways, if an employee is absent without notice/ permission/ authorisation for a longer period of time then the management needs to:
1. Ask the employee to rejoin in service and/ or show cause for such absenteeism.
2. If the employee fails to report for duty or give insufficient/ unacceptable cause then the management needs to initiate domestic enquiry before taking any steps/ terminating his service.
At no cost principle of natural justice should be violated.
if the company terminates the service (for whatever reason) then the question of recovering any notice pay does not arise since the employee has not left the job.
If the employee has genuine reason for his absence (like medical certificate etc.) then such absence cannot be treated as misconduct directly if he is not in a position to intimate the employee regarding his illness in due time. However, each case will depend on the factual aspect.
Even if his non-informing the company about his illness is treated as a 'misconduct' provided that his grounds are genuine, then termination for such misconduct would be non-proportionate to the misconduct.
If an employee does not serve the notice period or does not pay in lieu thereof, still you cannot treat his action as misconduct since employer employee relationship ends once such resignation is given and accepted.
From India, Kolkata
You say yours is an IT Company. Apart from what Mr. Reitesh observes; the fact remains that how to cover an organizational suffering because of this sudden attrition ? Gone are the days where people used to work honestly year after year in a single establishment; and were growing with the organization, getting definite advantages, personal relations and security. Now, what you state is becoming the usual scenario particularly in IT Firms.
It is clear from what you write that the subject employee has left the job with you and might have joined elsewhere (with some rise in pay-package) keeping you wondering of what to do next. Of course, you can always follow legal procedure for recovery of notice pay from defaulting employee, provided you have all the authentic records; but the total procedure is not only lengthy and time consuming; but also rarely advisable because of its little or nil gains. You say that you had systematic follow up and notifications w.r.t the subject employee. That should be more than enough to establish that he / she is not responding to your requests. If you still want to do something, post an RPAD letter to his available fresh address depicting all the things as they occur and close his file and concentrate on how his/her vacancy can be filled in.
The conspectus of the case is that the employee who after the expiry of his authorised leave did not rejoin but submitted his resignation which was not accepted by the employer on the ground of non-fulfilment of notice period obligations by him and even after formal communication, refusing to comply with the notice conditions either way, he remains still absent. So, the issue of abscondence or abandonment of services by the employee which is marked by the impossibility or the absence of reciprocity of communication following unauthorised absence is certainly out of question. What remains in this context, therefore, is only the effect of resignation submitted by the employee immediately on the expiry of the leave alredy sanctioned. Though resignation is recognised as one of the types of unilateral termination of the contract of employment, it will take effect only after its acceptance by the employer subject to the compliance of notice conditions stipulated already.
Here, the outright refusal of the employee either to serve the notice period or to pay in lieu of notice partakes the character of the misconduct of refusal to obey the lawful orders or direction of the employer. So, the unaccepted resignation by the employee can not preclude the employer to dismiss the employee after taking appropriate disciplinary action. ( Hope you have the certified Standing orders for your establishment; even otherwise you can take disciplinary action under the provisions of your State's model standing orders).
Alternatively, you can accept the resignation and adjust the notice salary in his full and final settlement amount or proceed against him legally for recovery.
From India, Salem