Nagarkar Vinayak L
Hr And Employee Relations Consultant
Hr Executive

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I joined this employer in subject after receiving offer letter on 1.12.2018 as Finance Manager and was working with them till August 24th 2019and upon my fathers sudden death due to cardiac arrest on August 25th I had to take leave for 1 week. During that 1 week leave I was diagnosed with piles and I asked my employer to allow me to work from home for few more days but within next two days I had to get admitted in hospital for surgery in my buttocks part inside and was confined to take rest and avoid travel by my doctor for another 2 to three weeks. During hospital days I couldnít take the calls from office and I was in hospital from September 5th to 11th. All these happenings I had informed my HR through watzap messages whenever I could.

By September 18th after a talk with management representative(partner of the firm), we decided mutually over phone to discontinue as I gave back their laptop, Iíd card, phone through one of their office staff who came to my home and took it. Since I had to go for review check up at hospital on that day I didnít care to take a slip stating that above office work items returned and get it signed by them. And again on September 25th I was again admitted at another hospital for pneumothorax(lungs collapsed) treatment with surgery leading to 13 days complete bedridden admission at hospital and continued rest at home for about 1 month.

Later on November 30th I went to this office and asked for experience certificate for the period which I worked as I had to start searching for another job,they refused saying that I didnít handover accounts properly and I didnít respond to their calls. so canít serve experience certificate in a very rude manner. I argued with management saying that I never want to discontinue my employment but my medical situation demanded it and my wealth is in priority and I have called back whoever called me though not right after but later and answered with their queries. But they were not listening to my explanation and I left from there soon after.

Later by February 2020 end I got another employment offer ready but since I was not given relieving letter and experience letter I had to give previous employer HR email address for reference. My previous employer gave negative feedback on me and I was denied new job offer. Please advice me as to what can I do legally to obtain it?

From India, Chennai
Hi Ajith,
More of specifics would be required here, such as what exact reasons pertaining to what types of dues did the company mention for not providing your relieving letter. Here, stating you did not hand over the accounts properly, does not explain much.
Regarding on not responding to their calls, if they consider this as absconding, they are supposed to send letters of concern to your residential address updated in their records, asking you to communicate with them.
Normally, when an employee provides the hospitalisation certificate for a period, the company would be okay with it. Perhaps the fact that you had been discharged from hospital and may have been looking out for another job, instead of joining back with them might have irked them off. The possibilities are many, but without specifics, there amy not be much that could be explained.

From India, Bengaluru
Sir, type of dues from my side means All those accounts related matters like Tally, Excel files etc which I was handling but all these have access to my assistants also.

Sir, by the time I went back to office after the second surgery they had appointed another person on my behalf. They told my interviewed employer in reference email as I was not responding to them and I was terminated. But I handed over the laptop, Iíd card, phone after talking to one of their partner and mutually agreed to end my job. So why should they give negative comment in the reference email?

They are not even interested in looking at my hospital records because they know the fact that am genuinely admitted in the hospital but they are taking revenge on me as I received all my salary while I was in hospital because myself or my employer never thought all these would happen and I will be unable to join back office in days.

What shall I do?

From India, Chennai
Hi Ajith,

The termination here on the grounds that you did not respond to their e-mails, is totally illegal and you have every right to raise a complaint against the company in the labour court.

The reason is that if an employee is not reachable or does not respond to the company's correspondence, the company can only issue a dismissal letter, which can be appealed against by the employee.

The process here should have been that the company should have sent letters of concern to your residence address via the India govt post, stating that there is no correspondence from you to the company. Normally companies send about 3 such letters of concern within a duration of 14 days and then send out a letter of inquiry fixing a date and time for the employee to meet the inquiry officer. If the employee does not appear for the inquiry meeting, then in the absence of the employee or ex-parte, a dismissal letter is issued.

The reason that a dismissal letter is issued and not a termination letter, is because there is no record of why the employee did not respond to the company's letters and so it is not legal to deem that the employee did not respond on purpose.

A termination letter can be issued only after an inquiry is conducted where both the employer and the employee are present.

Later, if the employee appeals against the dismissal letter, then the employer is legally obligated to re-open the inquiry and if the employee is found innocent, then reinstate his services, or provide him a proper relieving letter after consulting with the employee.

There had been a case in a company once, where an employee on his travel to Ladakh had fainted and was in a coma for 6 months. By this time as his company was not aware of his whereabouts, they had issued a dismissal. After he recovered from hospital, he appealed against the dismissal and he was taken back into service.

In your case, the same applies, where you had been hospitalised and hence not in a position to respond to the company's e-mails. So, they are bound to provide you a proper relieving letter or take you back into service.

If the company has provided bad reference to your future employer, you can also sue them for defamation.

From India, Bengaluru
Dear Colleague,
After reading your post , I observe the following:
1 There are no documents to support that your services have come to an end either through your resigning or the employer terminating you.It is still open .
2. It was only verbal discussion with the partner on phone regarding mutually acceptance of your implied resignation and subsequent handing over company belongings. But no documents to support you resigned , you handed over proper charge and your resignation is accepted and release letter issued.
3 It is difficult to understand , being in responsible position as Finance Manager, how you failed to ensure your smooth exit in terms of your contract.
4 It is clear that you were forced to leave on account of genuine prolonged health issues. Despite this, it is not understood why company has taken vindictive stand in not smoothly relieving you , refusing to give experience letter and giving negative feedback in BG check.
4. Being in Managerial position, I don't believe you have protection of labour laws.
You can only meet the top decision maker in the company and persuade him by putting all the facts properly and sort out the matter as from plain reading of the post , there should not be any scope for ill- feelings between both as your seperation was only due to health constraints.
Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
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