Industrial Relations And Labour Laws
Hr Manager

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Hi, As per subject we were hired third party payroll employee for our office as she will look the overall activity comes under HR but after oct 2018 Diwali. she didn't come to office and don't have any attendance about her presently. But from march she demanding her 2 months salary nov-dec 2018.
She wasn't present these 2 months. So, is she eligible for salary as she demanding .
As per 1 year contract, we have to give her salary +8.0% inc. on the same but she wasn't present 2 months and she left - so what we do?
what actions we should take?

From India, Mumbai
You have "hired" her (never say hired but only say "engaged") through a contractor/ outsourcing agency and as such you don't have any responsibility to pay any increment or notice pay. She discontinued the job by her own will and it is not that you have fired her. The how can she demand notice pay? Refuse to pay it saying there is no master servant relationship between you and her.
Now coming to the reality, let me say something.
In a contract like this, you should not make any commitment like 8% increment etc because this clearly establishes that contract is sham and everything is controlled by you only. You can make a commitment of increase in the professional charges payable to the contractor but not to their employees who are deployed in your plant. Second things is that you have engaged her in HR department. HR is a core function and more than that a confidential function where you cannot have any outsourced employee.

From India, Kannur
thank you for you suggestion mam, mam, as she continuous mailing us about the same and saying that she want to meet and want her money in this situations being HR what step should I take ? like shall I meet her in office ? this all matter happened before I joined. now my MD wants me to involve in this matter and solve it.
how to close this matter and what point should I cover while meeting with her as she is very experience person in HR Field so, she must know the way to collect money?
plz address me for same

From India, Mumbai
First of all ask her to contact her employer, her employer means the agency who pays salary to her, ie, the contractor. Tell her that between us there exists no legal relationship and as such we can not entertain your claims. Since your deployment in this company, we have not paid you salary nor had you asked for it but salary was paid to you by your employer/ the outsourcing agency. Now you have stopped coming also. When you have decided not to come for work, how would it become our responsibility to pay you notice pay/ two months' pay?
From India, Kannur
I am addressing only the legal aspect here.
Nature of Contract:
I think from your description, the said employee were in direct contract with your company. Had she been any employee given for assignment from another contractor. The contract would have been with that other party. Now the most important part of a contract is "Privity of Contract". Here you have a direct contract with the said employee, so you she can claim privity. See this for more information Things To Remember While Drafting A Valid Employment Contract
Absenteeism and Termination of Employment:
The Industrial Standing Order states
Holidays and Leaves:
A person employed in a shop or an establishment shall be entitled—
1. For every completed year of continuous service, to privilege leave on full pay for fourteen days
2. In every year, to sick leave on half pay for fourteen days on medical certificate obtained from a medical practitioner.
3. In every year, to casual leave on full pay for ten days
4. In the case of woman, to maternity leave in accordance with such rules as may be prescribed.
Termination of employment:
(1) For terminating employment of permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.
(2) No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated ,but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed.
(3) Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated. SEE FULL HERE Drafting of HR policies in line of Industrial Dispute Standing Order
Determine whether the employee was a Permanent, Temporary etc. For due salary you need take into account leaves or holidays according to the law. Absenteeism is a breach. Now in your case it is reasonable and can be called a breach. Read your states Shops and Establishment act. Generally there is a point on termination due to absenteeism.

From India, Kolkata
Dear friend,
You have not hired the lady rather the agency, where she was working. You ignore her call, advice her to contact her paymaster for salary & wages.
In the mean time you can direct the agency to look into the matter of the lady. Whether she worked during November - December2018 is not a subject matter for you.
Were you paying her directly?

From India, Mumbai
thank u for ur warm I discussed her on call she arrogantly behave on call as I asked her,why u didn't punch in-out on daily basis so she said this is not mandatory for third party payroll person and this is not mentioned in contract also the concern person said I have MOM with me that's enough to say that I am attend the office.
From India, Mumbai
How an outsourced employee can have an upper edge on company employee? You have only 'hired her services' through a third party (means 'a contractor'). It is not the principal employer's responsibility to give wages/salaries to an outsourced employee. Even for the statutory matters also, the contractor is responsible and not the principal employer. You can assertively tell the female staff to contact her employer (contractor) for her wages/salaries, if any - if applicable. As principal employer, you have every right to pro-ratedly deduct the amount from the bill of the contractor,
for the days she was absent from duty.

From India, Aizawl
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