Dinesh Divekar
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Bharat Gera
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Kritarth Consulting
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Tamal Das
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Thread Started by #amit.astha

If an employee has been absenting since more than 20 days with out any intimation and even still not joining - what can be done - Can we terminate the employee with out giving any settlement on the ground business loss
2nd June 2017
Dear Amit,
This is a case of abandonment of duty. However, before termination send at least two notices to his last known address for his unauthorised absence. If no reply is received or if the reply is not satisfactory or if the employee does not join his duties then it is better to order domestic enquiry. If the employee does not turn up for domestic enquiry also then you may take ex partedecision to terminate him.
Few companies terminate with just a notice. However, it is legally incorrect procedure. How far to follow the procedure is up to your company.
Dinesh Divekar
2nd June 2017 From India, Bangalore
1. Can he insist that he should be allowed to complete 3 months notice period or the employer can terminate by giving 90 days notice pay (Basic pay only) as it is not his fault. 2. Is the Employer required to give the reason for termination/retrenchmnet. 3.The company wants him to resign voluntarily but he does not want to resign as there is no immediate job/offer in hand, in case he gets 3 month's full pay by giving only the notice/intention to resign, he can finacially survivie till he gets a job. Is there any provision to buy time or be reasonale. 4.Alternatively can he ask the employer to terminate him instead of his resigning voluntarily as he will get the reason in writing, in such a case is he entitled for full pay or notice pay 5.Kindly advise how to handle this situation as the company in earlier occasions ( last year) permitted few employees to continue for 3-4 months in job with full pay / paid 3 months full pay without attending the office.
2nd June 2017
1. I agree with Mr the view point of Mr Dinesh Divekar, he has advised correctly.
2. Follow his advice.
3. Do not terminate without following proper process otherwise it will boomerang if the employee decides to fight back as the courts have taken views favourable to the employees in such matters.
2nd June 2017 From India, Thane
Along with the points shared by Mr Dinesh Divekar, please refer to your company's approved standing orders and check what it the provisioning made there. if there is any variance as per suggestions made and as mentioned in standing order then follow the later one. Intimation is generally required thrice at various intervals, keep a weeks time difference at least and send notice through registered post only. retain a copy of acknowledgement of posted copy in personal records.
Harpreet Walia
3rd June 2017 From India, New Delhi
Sir, to the best of my knowledge , before termination on absconding, a public notice of absconding in two prominent and widely circulated daily is generally suggested .
Hopefully this point will be considered and discussed / advised suitably. gpagarwal lucknow - ph.8009458901
3rd June 2017 From India, undefined
Dear Mr Agarwal,
Publishing in the news paper is not necessary according to my view point.
Sending minimum two registered A/D letters are necessary, at the last updated address in the company records.
If the letters are received well & good, if they are returned undelivered still it is good to start an ex parte domestic inquiry but with each step you have to keep on sending registered letter to the delinquent employee.
4th June 2017 From India, Thane
Greeting, and thank you for sharing this issue. I do suggest to please review the case as following;
1- What is the legal concern in case if you want to terminate the employee immediately?
2- Is there a clause of an employment contract for such a circumstance to help and guide you?
3- What's the nature of your organization, is this a random case, or do you face frequently?
4- A YES or NO to some of the above questions, would help you to review your recruitment and selection process of your company. This ultimately will help you in terms of how to solve this problem at a glance. Neither, the senior has advised you correctly.
4th June 2017 From Singapore, Singapore
A 30 to 90-day notice period applies in order to terminate ‘workmen’ (as defined in the Industrial Disputes Act, 1947) – that is, employees whose role is not primarily supervisory, administrative or managerial) for convenience, with 15 days’ pay due for every year worked. In the case of manufacturing units, plantations and mines with 100 or more workmen, termination for convenience requires government approval; in other sectors, it requires only government notification.

Termination for cause does not include non-performance – it includes only behaviour which qualifies as misconduct.

The ‘last in, first out’ principle requires that the employer first terminate for convenience the last people to join the organisation in the same role. However, this requirement can be contracted out of. When hiring for the same role, workmen who were terminated for convenience should be given the opportunity to re-join the company.

State laws generally provide for about 15 days of earned/regular leave a year. Employees also benefit from up to 10 days of sick leave and a possible 10 additional days of ‘casual leave’. This is generally more than what most organisations would ideally like to provide.

Most state laws provide for ‘casual leave’ – the employee can opt not to come to work that day without applying for leave in advance. Many organisations find this disruptive.

Most state laws restrict women from working at night; if women are to work at night, specific approval must be obtained. Further, the employer must offer door-to-door transport and meet some security-related requirements.

Most state laws prescribe overtime for any hours worked beyond 48 hours in a week. However, this is seldom observed.

Indian law regulates and in some cases prohibits the use of contract workers. To engage contract workers, the contractor must hold a licence and the employer must be registered as a ‘principal employer’.

Non-compete agreements are not enforceable under Indian law, while non-solicitation clauses can be enforced only in limited ways.

While the ‘work for hire’ principle applies under the Indian copyright regime, it does not apply under the Indian patent regime; employees must thus provide formal assignments.

Indian laws require employers to maintain a plethora of registers and notices. Compliance with such requirements is difficult and full compliance is rare.
4th June 2017
Many employers have found themselves in difficult situations where the employee fails to report for duty and the employer does not know of his / her whereabouts or the reason for the absence.

It will be easy for the employer to deem the contract of employment terminated and as a result refrain from taking any further steps. However, even where an employee has been absent from work, the law still requires that an employer takes certain steps before deciding that the employment relationship has been terminated.

The audi alteram partem rule is the core of our labour principles. In a situation where the employee’s whereabouts are unknown it is hard to afford him an opportunity to be heard before “dismissing” him.

Where the employee has been absent from work for three or more consecutive days and the employer has no idea where he is, the employer must first make all attempts to contact the employee and summons him to report for duty. This can be done by sending him a telegram to his last known address and/or a message on his cell phone. Should the employee still not report for duty or contact his employer then the employer should proceed with the next step.

The employer may then send the employee a letter stating that the employee’s employment has been terminated due to him deserting his duties. However it is important to mention to the employee that he has the right to make known his reasons for absence and appeal against the letter. For all intents and purposes it is not the employer terminating the employees’ services but a case of advising the employee that he has terminated his own service by failing to report for duty.

If the employee at a later stage decides to refer the matter to the CCMA or the Bargaining council the employer will be able to prove to the commissioner that the necessary steps were taken to try and locate the employee’s whereabouts, however, nothing realised from the steps taken. The employee himself will have to give an exceptionally good explanation as to why he failed to inform the employer of his whereabouts and in many instances they fail to do this.

It is imperative to distinguish between absence without official leave and desertion. It has been held by the CCMA that in cases of desertion also known as “termination of employment by absconding”, an intention not to return to work must be established.

The conclusion here is that; by following all the necessary steps before accepting that the employee has repudiated his contract of employment by deserting his duties, will put the employer in a better position to argue his case before the commissioner should the employee refer the matter at a later stage.
4th June 2017
The original question is whether an employer can terminate the services of an employee who is continuously absent even after the former's reminder to rejoin forthwith and the immediate answer given by Mr.Dinesh is an appropriate one as the case is one of abandonment of service by unauthorised absence.
4th June 2017 From India, Salem
Dear MrAmit Ashtha,

Your Query:- "If an employee has been absenting since more than 20 days without any intimation and even still not joining - what can be done - Can we terminate the employee without giving any settlement on the ground business loss? dated 2nd June 2017."

Position: "Unauthorized Absence from Duty, for whatever period/duration/no of days constitute /amounts to act of Misconduct for which necessary Disciplinary Action can be / should be initiated for the sake of maintaining & promoting Workplace Discipline as per the Provisions of the Model Standing Orders /Service Rules framed under the applicable Shops &Establishment Acts, as the case may be.

Further, since taking appropriate Disciplinary Action for the said act of Misconduct by the Employer is Non-Negotiable and the sole Privilege/Prerogative of the Employer, following Action-Steps, ab initio, need to be taken immediately:

i) A Charge-sheet or an Explanation Letter be framed clearly and categorically mentioning therein the Date from which the said Worker/Employee started absentig from his/her duty without any information or permission after thoroughly checking the Attendance Record and giving/affording reasonable opportunity to him/her to explain the misconduct (be guided by the relevant provision in your SO or Service Rules in respect of No of Days; generally the reasonable opportunity is the total time of delivering the Regd Envelops plus Two/Three additional days);

ii) The Charge-sheet/Explanation Letter be issued to him/her by Regd Post with his/her Home (Permanent) as well the Local (Present) Postal Addresses correctly mentioned on the Envelops; and

iii) In case these Regd Envelops are returned undelivered by the Postal Authorities with the Remarks either ..." Addresee Refused to receive".. or "Addresee Not Found at the Adress", preseve these Two Envelops as Record for future reference purposes;

iv) An Officer Order be issueed under signature of the Authorized/Punishing Authority informing the Charge-sheeted Employee about the Employer's Decision to hold an Inquiry in the said Act of Misconduct; Appointing an Inquiry Officer or Inquiry Committee to enquire into the allegation/act of misconduct with a view to ascertain the Facts pf the Case and submit Inquiry Report with Findings after following the Principles of Natural Justice as well as the Inquiry Procedures laid down for such Departmental/Internal Inquiry; and also nominating/naiming an Officer/Executive to present the related Facts/Data before the Inquiry Officer as Management Representative;

v) The Inquiry Officer need to issue Inquiry Notice to the said absenting Employee intimating to him/her the Date, Time and Place of Inquiry as scheduled and advising him/her to attend the Inquiry Proceedings to defend his/her Misconduct alleged;

vi) In case the said absenting Employee attends the Inquiry to defend his/her action/misconduct alleged full Inquiry Proceedings as prescribed be followed;

v) However, in case, s/he absents/abstains from attending the schedyuled Inquiry Proceedings on the Date,time and Place informed to him/her, the Inquiry Officer need to give him/her "yet another opportunity" to appear before Inquiry Officer to defend his/heraction/alleged misconduct by adjourning Inquiry to another Date and intimating to him/her about the same adjournment by Regd Post;

vi) On the next Date, the Inquiry Officer may decide to hold/proceed with ex-parte Inquiry Proceedings in case the charge-sheeted Employee does not turn up/show up to take part in the Inquiry and after examing the Materials-on-Record presented by the M R, and conclude the Inquiry;

vi) Once the Inquiry Officer submits/forwards the Inquiry Report with Findings, the Punishing Authority can excercise his/her discretion to award the Punishment for the act of Misconduct keeping in mind the Provisions of the applicable SO / SR relating to quantum of Punishment ( which need to be proportionate);

vii) The Punishing Authority need to communicate the Punishment for the said act of Punishment to the said absenting Employee and give an opportunity to submit his/her "Representation againtst the proposed Punishment: if any; and

viii) The Punishing Authority may thereafter issue Punishment Letter by Regd Post, as stated before, after due and diligent consideration of his/herRepresentation received /not recieved , as the case may be;

The Employer is at this stage, free to decide further action to manage the Work.

May be, you decide to seek further calrification in the matter and Team Kritarth is always available for the same.

Team Kritarth,

4th June 2017 From India, Delhi
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