Umakanthan53
Labour Law & Hr Consultant
Nagarkar Vinayak L
Hr And Employee Relations Consultant
Rkn61
Hr Manager
KK!HR
Management Consultancy

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Anonymous
I am currently serving notice period. My employer has refused to give leave encashment and said any leaves taken (from my remaining annual leaves) in the notice period will extend the notice period by the same number of working days.
From what I understand, under CHAPTER IV of The model Shops and Establishments (Regulation 0f Employment and Conditions of Service) Bill, 2016, it is necessary to allow employee to encash leaves on resignation.
Similary, under chapter IV of karnatak Shops and Establishments act:
If the employment of an employee who is entitled to leave under
sub-section (1) 1
[x x x]1
is terminated by the employer before he has taken the entire leave to which he is entitled or if having applied for and having not
been granted such leave, the employee quits his employment before he has taken the leave, the employer shall pay him the amount payable under
section 16 in respect of the leave not taken, and such payment shall be made, where the employment of the employee is terminated by the
employer, before the expiry of the second working day after such termination, and where an employee quits his employment, on or before the next pay day.
The employer has said its not in there policy so there is no way they will allow it. Please advice.

From India, Delhi
Anonymous
THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT, 1961
Leave encashment should be allowed:
(13) If the employment of an employee who is entitled to leave under
sub-section (1) 1
[x x x]1
is terminated by the employer before he has taken
the entire leave to which he is entitled or if having applied for and having not
been granted such leave, the employee quits his employment before he has
taken the leave, the employer shall pay him the amount payable under
section 16 in respect of the leave not taken, and such payment shall be
made, where the employment of the employee is terminated by the
employer, before the expiry of the second working day after such
termination, and where an employee quits his employment, on or before the
next pay day.
Increasing notice period due to use of unavailed leave also seems problematic.
(14) The unavailed leave of an employee shall not be taken into
consideration in computing the period of any notice required to be given
before discharge or dismissal.

From India, Delhi
Annual Leave (AL) or Earned Leave (EL) or Privilege Leave (PL) is the type of leave which is accrued to the credit of the employee (or earned by the employee), after one year of continuous services with the company. If employee puts in more number of years, AL/EL/PL accrued shall be more.
In your case, you have already put up your letter of resignation to the management and currently you are serving NP, as per the terms & conditions governing your employment with the company.
You have every right to avail AL/EL/PL . What if you are suffering from fever and not able to attend your duty? (that too, in this era of pandemic covid 19).
Even if the reason for exit of an employee whether by way of termination or his resignation, the employer is required to give the employee encashment of unavailed portion of AL/EL/PL, lying in the credit of employee's account.
So without any hesitation you can ask your unavailed EL's encashment.

From India, Aizawl
The requirement of fully serving the notice period by a resigned employee is to enable the organisation to ensure continuity despite loss of experienced manpower. The notice period is to be used to prepare a substitute for the resigned employee. It will be defeated if the resigned employee is allowed leave. So during notice period leave is not granted and the insistence to extend the notice period by the days of leave cannot be viewed as illegal. But for the annual leave which one has in credit at the time of being relieved has to be paid. The quoted provisions are casting a liability on the organisation to make such payment. The two things are different and shall not be mixed up.
From India, Mumbai
Sorry to differ with my learned friend KK!HR in the issue of prohibition on the availment of leave by an employee on notice period and the proportionate consequent extension of the notice period if availed any leave.

Notice period cannot curtail any employment rights or benefits of the exiting employee nor it can confer any special powers on the employer to over ride the terms of the contract of employment already fixed or statutory provisions of law in force. Leave provisions are there in the statute only to enable the employee to discharge his personal as well as social obligations which can both be planned and unexpected just like any other member of the society. Of course during notice period, naturally there will be more pressure on the employee like completing unfinished works, attending to certain important and urgent works, familiarizing the substitute with the basic and priority-based items of the work of the seat. Only to facilitate all these things, the practice of non-sanction of leave is adopted by many employers. But it cannot be a rule of thumb or a ruthless policy of lack of empathy. Uncertainty is the common feature of life and any thing can happen at any time. Suppose an employee on notice period suddenly falls ill lasting for a shorter period of two or three days like dysentery or sour eye, how can the employer be totally inconsiderate to refuse leave or extend the notice period alternatively? Will it be a good HR practice apart from being illegal?

From India, Salem
Anonymous
The issue of good HR practice etc does not arise here as the employer has straight forwardly refused to even allow leave encashment to employee against the law.
Can such refusal to adhere to established law attract any fine? The employers idea is that most of the people don't know that this is the law and most likely wont take the pain of actually filing complaint/ case and risk having trouble with relieving letter.
What will be the legal procedure to handle this?
Do the employee need to file complaint with labour department for non-payment of wages or file suit in court?
The employer is completely unethical and has no regard for its reputation. So the employee fears that if he fights the employer on this, they can stall his relieving or file wrong suit for theft of IP.

From India, Delhi
An employee can take annual leave during a notice period if the employer agrees to the leave. However, the employee can only take personal or sick leave during a notice period if they give: in respect of statutory entitlement to 5.6 weeks' paid annual leave under the Working Time Regulations 1998 (SI 1998/1833). ... In other words, holiday entitlement for the employee's final part-year of employment should be calculated up to the end of the period of notice that they work.If you wish to leave before the end of your contractual notice, in practical terms, your employer does not have a great deal of options. Your employer cannot force you to work, even though you may be in breach of contract.You could take them to court for damages that your business will suffer because of them not working their notice period. Courts are unlikely to force staff to work their notice period. Equally, if you breach the employment contract, an employee might not need to work their notice period-https://rplg.co/b6911cc0
From India, Bengaluru
Dear colleague,

Here the limited question raised is can employer refuse encashment of leave because an employee, during the notice period availed leave and consequently served short notice period?

The answer is it is illegal to do so. However, if service conditions required so and an employee was informed about it, even then refusal to encash would be wrong, unjustified and illegal.

The effect of the availing leave during the notice period, legitimately should be to only extend notice period by those many days or at the worst to treat those days as loss of pay. But to reject outright leave encashment solely on that groud is breach of legal obligation on the part of the employer.

You write to the decision maker and demand encashment failing which approach Labour commissioner' office for redressal.

Regards,

Vinayak Nagarkar

HR and Employee Relations Consultant

From India, Mumbai
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