Employee Joins New Job Without Resigning: What Can the First Employer Do?

Dear all,

I have a situation where an employee joins another organization without submitting the resignation to the first employer. The first employer comes to know about it and tries to follow up with the employee. The employee is not bothered about it and doesn't turn up. In this case, what can an employer do to the ex-employee (who's still an employee)?

Now, my query on this is:
- Can an employer take legal action against that employee?
- How can the employee be punished so that he doesn't do this with any other employer?
- If an employee is in a junior position (e.g., a salesperson in a retail shop) and leaves with the uniform, ID card, etc., what can an employer do in this situation?

Please revert.

Hey Joe,

In this case, the employer can definitely go legal against the employee. As per the employment clause, one cannot be employed with two companies simultaneously. It's like marrying another person without divorcing the previous. It's very much illegal.

Please go ahead and file a legal case against this person and teach him a lesson.

Regards,
Anurag

Hi Joe,

Greetings for the day.

According to me, it is very important to know what has been mentioned in the offer letter or appointment letter. If there is a clause on "No dual employment," then you can take legal action stating that he is simultaneously working with two organizations.

Sometime back, I posted a similar kind of problem on this site, and the above solution was put forward by one of the senior members with a legal background.

I hope this makes sense to you.

Well said by Ms. Sujata Tiwari. These are issues that have to be handled amicably in the first instance. If you go for legal action against such employees, you do not get time for other work. An employee who leaves without intimation, if summoned to explain the causes, may have his own reasons which may become another headache for you only. Ensure that ID cards are not misused. Publish the matter in the newspaper that he has no connection with the company and any person dealing with him will be dealing at their own risk. That is enough.

Being employed in more than one organization is not a severe offense on the part of an employee unless provided in the certified Standing Orders of the company. One can take employment in different firms and collect a salary also. But there can be an arrangement for that. As far as an employee, especially those at a lower category, is concerned, they are least bothered about submitting a resignation letter and getting relieved in a proper way.

Regards, Madhu.T.K

Madhu T.K. Sir,

What is meant by the prohibition on double employment according to the Factory Act? Please give us a proper interpretation.

Dear Joe,

Do you have any documentary evidence of his working with the 2nd employer? If you have, then simply send a legal notice to the current employer with documented details of his existing employment status with your organization and demand his immediate termination from his present job due to this offense. If the current employer fails to do so, you may file a lawsuit against the present employer and bring him to the court of justice for a fair judgment.

If he is a salesperson in a retail shop who goes away with uniform, ID card, etc., there may be other assets like cash or stock/goods pending with him. You may ask for an auditing/inventory of your belongings with him. Additionally, there are many trade secrets that he may expose to your competitors, etc.

There are many other ways where an employer is given equal protection as the employee. Please consult with a good advocate to discuss this problem. Show all the existing evidence and seek his assistance in solving this problem. Let him handle the case professionally.

I hope this reply addresses your query. Should you need further support, please do not hesitate to contact me.

Best Regards,

Khaiser Ali Sha

As suggested by Khaiser Ali Shah, you cannot send a legal notice to an employer demanding your previous employee to be sent out. It may be maintainable in Saudi Arabia but not in India because there exists no monetary or other relationship between the two employers. In the absence of any consideration flowing from the previous employer to the present employer, how can the previous employer sue the present employer?

To be practical, it is advisable to terminate the employment by sending a letter stating that the employee has abandoned the job and is not interested in resuming work.

Double employment in the Factories Act refers to such employment wherein an employee is asked to do two different jobs at a time but does not mean two alternative jobs carried out at different intervals.

Regards,
Madhu.T.K

Dear Mr. Madhu TK,

Sir, the employee has not obtained the no-due certificate, not completed the handing-over part, and kept all the documents, data which are very critical for the organization (like the customers' information/business reports, etc.). Additionally, other related materials like the uniform, ID card, etc., are also retained. In the scenario where the employee then joins another company where the information is already available with the previous company, should we not send a letter to the employee stating that they are required to complete the relieving/handing-over formalities and leave, with a copy to the present employer?

This action may not be seen as negative in my opinion. It may serve as an alert to the present employer in these situations. Please correct me if I am wrong.

Regards,
Kameswarao

If the employee has been unfair and has not handed over the documents and ID cards, then you can ask him to surrender the documents and get the full and final clearance done. In this process, the new employer is not a party, and it will be sensible to call on him. Certainly, you can caution the employer by sending a letter about the employee, but it will not work if the new employer also knows all these facts and is taking advantage of the employee who left you.

Regards,
Madhu T.K.

Dear Mr. Madhu T.K.,

I have added my bit to this discussion earlier, but after going through your reply, I am very tempted to post a reply once again based on my observations in such a situation.

Firstly, in this kind of situation, an employee stops responding to calls or emails, so there is hardly any way left to get in touch with them except by reaching out on their residence number if we have it in our personal records.

Secondly, when they go absconding, it is needless to say that they are not interested in their relieving letter, resignation letter, or arrears due (if any).

Thirdly, if they have left the organization with valuable information like customer data, in most cases, they do it purposely so that they can cash in on such data after joining the competition.

Fourthly, in most cases, it's a typical example of poaching, and hence the new employer is aware of everything and refuses to cooperate with the previous organization.

Keeping in mind all that I have mentioned above, do you think that asking him to surrender the documents is going to help in any way?

I have observed that in all your posts, you have discouraged Joe from taking legal action. I understand it is too much of a hassle to get into legal action, but sometimes employees leave us with little to no option.

I would love to know your views on the same.

We have a lot to learn from you.

Thanks and Regards,

Indrani Chakraborty

Dear Indrani,

I appreciate your valuable inputs. I have also mentioned that without cooperation from the new employer, it is not possible for us to take any action against an absconded employee. As you mentioned, it will always be with the silent permission of the employer that such situations occur, and it is this support that allows these employees to abscond without concern for relieving orders or service certificates.

I firmly discourage legal actions against such employees as they are unlikely to be effective promptly. I have taken a firm stance against pursuing legal measures against the new employer in response to Khaiser Ali Shah because I believe that without any "consideration" or value in return, the lawsuit will not be sustainable.

In any case, the issue was raised in 2008, and I am unaware of the developments regarding Joe's matter at that time.

Regards,
Madhu.T.K

Dear Mr. Madhu T K,

Thank you for your reply. I understand it has been long since Joe posted this topic, but I wanted to participate in this discussion since this problem has almost become an everyday occurrence.

The only way to fight this nuisance is that we, as HR professionals, should ensure that a new joiner in our organization has completed the exit process in his/her previous organization and has a valid relieving letter from the past organization. However, this is an ideal situation, but most of the time, it becomes difficult to adhere to such professional ethics as recruiters have very steep targets to meet.

Thanks for adding your bit to the discussion.

Kind regards

Employer Actions for Employees Joining Another Organization Without Proper Resignation

I have a situation where an employee joins another organization after submitting their resignation to the employer. The employer becomes aware of this and attempts to follow up with the employee. However, the employee shows no concern and fails to show up. In this scenario, what actions can an employer take against the ex-employee who is still technically employed?

My queries are as follows:

- Can an employer pursue legal action against the employee?
- How can the employee be disciplined to prevent such behavior in the future?
- In the case of a junior employee (e.g., a salesperson in a retail shop) leaving with company property like uniforms and ID cards, what recourse does the employer have in this situation?

Please provide your insights.

Regards,
Emergency

Handling Employee Resignation and Transition

Sending all the details to the present employer is not advisable. It is better to call the employee to give the resignation, ask him to settle all dues, if any, and relieve him from the company after finishing all formalities. Furthermore, you can publish the matter in the newspaper stating that he has no connection with the company, and any person dealing with him will be doing so at their own risk. That should be sufficient.

Alternatively, if he is a sales representative, inform all your customers that he has been relieved from your company. While it is everyone's freedom to leave one company and join another, every employee should remain loyal to their company during their service. This is my opinion.

Regards,
Manogharan G