Employee Cleared to Return After Surgery, But Management Says No—What Should I Do?

Dear Seniors,

Please help me. I am in a fix. The problem is that one of our employees has been sick since 11th April. He has undergone a certain operation and is not in a position to work. He has informed us about his situation through letters and now he wants to rejoin us as his doctor has provided a fitness report. However, the higher authority does not want him to rejoin. What should I do?

Please reply. It is urgent.

Smita

Hi,

Are the higher authorities a part of your HR team? It is very important for any HR professional to understand the culture and practices of their organization. Some are people-centric, while others are focused solely on work. As an HR professional, you bridge the company and the employees.

If there are predefined rules for terminating an employee's services due to long-term absence, then there is no need for further consideration. If not, the best course of action is to discuss the matter and request clear reasons from your senior management for this action and proceed accordingly.

Hope this helps.

Thanks and regards, Ravi Shah

Thank you very much, Mr. Shah.

In my company, there is no HR team. Most decisions come from the Management Committee. As a result, there is no formal process for requesting long leave. Additionally, this is the first time I have encountered such an issue due to cost-cutting measures.

Please reply.
Smita

Oh well, if cost-cutting is the idea, then I think there's nothing you can do about it as these decisions would have been initiated from the topmost level.

How long has the employee been with your company? Ensure that you provide a notice period or compensation before asking them to leave (this, again, depends on your company's terms and conditions with its employees). The terms and conditions outlined in the offer letter are very important and should always be at the back of your mind. In situations like these, they come in very handy for determining the appropriate course of action.

Thank you, sir.

The employee has been working since May 08, and we have a notice period of 15 days.

Smita

Dear Smitha,

It depends upon the length of service and the approval of leave during the sick days. If the employee has produced valid medical certificates and fitness, you are bound to take him back to the employment. Get clarification from the management on what grounds they are refusing to take back the employee. It is unethical to terminate the employee even though he has informed about the illness and produced the certificate.

Regards,
Harikumar

No. What I mean is ... Check the offer and terms and conditions signed by the employee and the company during his joining. Every company has its own formalities when letting an employee go, which must be mentioned in the Termination of Services or Relieving section. Check that section to understand how many days' prior notice you need to provide to the employee. Try to keep everything in a record and printable format. Involve the supervisor in all stages as most of the time, these situations turn out to be very messy. Avoid terminating unless the situation calls for it.

I asked you about the employees' tenure because it plays a major factor in layoffs during cost-cutting.

Dear Sir,

The employee's tenure in the organization is 1 year, and he is working as a Project Manager.

Smita

Dear Smita,

Your company has no HR department. That means you are not part of HR. So, why are you taking an interest? Are you from management? I don't understand what your role is. I think verbal decisions are the main rules/norms/SOP of your company.

So, enjoy and don't post such imaginative stories.

Dada

Dear Dada,

I am neither the HR of this company nor am I from management. I am a consultant working in this company on my company's behalf. And for your information, this is not any imagined story.

Smita

Dear Smita,

No company wants to bear losses in the absence of somebody they have to search for the alternative to fulfill the vacant job to get the work done.

After 2.6 months sick leave, why doesn't management want that employee to join back? It may be because of the following reasons:

1) Cost cutting
2) They have developed and have an alternative for that employee and are satisfied with them
3) They don't want two professionals for one job
4) They are afraid of the sick employee's future illness or treatment
5) Maybe they were not satisfied with that person and now they have an alternative

The above is all about the company's side.

Now, let's talk about the employee's side.

1) If the employee is on approved leave, then nobody should refuse his/her rejoining – he may take legal action.
2) The employee may discuss the matter with the management with all reports, along with a fitness certificate, and get the issue resolved.
3) He must have proof of his/her approved leave before discussing with the management or taking any legal action.

Hope this helps.

Regards,

Pankaj Chandan

On noticing the details of the case, no company can send an employee out after he has joined from sick leave (in the case). Unless the company has put specific conditions in the letter stating that it can terminate without assigning any reason, it can do so. What I feel is the employee may discuss amicably with the employer, and if that fails, a suitable and appropriate approach can be made by the employee to file a complaint against the employer with the labor commissioner of a particular jurisdiction.

KB

Hi friends,

Even though it is a cost-cutting process, what message are we giving to the employees specifically and others in general? Mrs. Smitha is confirming that the employee underwent surgery, and it is genuine. The information is passed on, and to that extent, he is producing the certificates. If this is the reality, it is inhuman on the part of HR/management. We should allow him to work, and over time, slowly communicate with him.

The second point is, if this is part of cost-cutting, is this employee the last to join? As the process dictates that the last employee to join should be the first to go, if not, it could become an issue if the employee raises it.

Now, during the recession, the management can make decisions left, right, and center, but the employees will remember these acts very well. When the opportunity arises, they might also follow suit. In this context, I request all HR professionals to be very careful and advise the management accordingly. Failing to do so, we and the management will have to face the music, especially concerning unethical practices.

Regards - Kameswarao.

Thank you very much to Mr. Pankaj and KB. I got your points. I will ask the employee to talk to the higher authority. It may help him from being retrenched. Mr. Chandan, I really appreciate your ideas and ways of assessing the reasons from both sides. Being a good friend of that fellow, I was not able to see the reasons for a company. Thank you again to all.

Smita

Yes, I truly agree with Mr. Kameswarao, and when I mentioned HR bridges the employee - Company relations.

It does not seem to be a case of cost-cutting to me as the employee is a project manager and has been with the company for such a long period.

But again, I feel that we as HR professionals at times tend to get oversensitive towards employee issues and forget the fact that we too are employees of the organization and need to work towards organizational development, not just employee relations.

Most of the time, taking a call between these two may get tough, but the essence is, no matter whose side you take, you need to resolve the issue in the best possible way.

All I will suggest to you is to keep everything recorded from both parties and do exactly as instructed since you are not a direct employee of this organization. Try to discuss this with the consultancy head who has deployed you (keeping in mind not to disclose company info).

Dear Smita,

I really don't think this is about his sick leave unless he has a history of medical problems or frequent illness. Also, please check the genuineness of the doctor's fitness certificate. For me, you need to gather certain facts and build a case to present in front of the management. One with why he/she should be in the organization:

1. Contribution
2. Commitment
3. Performance
4. Relevant Skills & Expertise
5. Client or Customer feedback

And secondly, why he should not:

1. Missing Deadlines
2. No significant Contribution
3. Attitude issues/cultural misfit
4. Average/below-average Performance
5. No work

Once management makes a decision, reason it out with the employee, with the substantial data you have. Also, look if there is a way of giving him another opportunity. Since you hired him/her, there definitely must be something good about him/her.

Regards,
Rahul Deokar

Dear Miss Smita,

If the employee is presenting the proof of his illness/medical certificate of ESIC (if applicable), then you are bound to take him back on the job. Otherwise, he/she may move to legal processes, and if he proves that he is not wrong, then...

With regards,
Rajesh Chauhan

Dear Smitar,

One fact has come to light that the person has undergone several operations, and management is worried about his work. They do not want to create any type of disturbance, as he would like to go for routine check-ups and take some time.

I think your management is very cruel; they have no humanity. You should advise them that the person has a fitness certificate and can claim for rejoining. Please give my number to him; I will advocate on the basis of social help. I will bear all costs of court fees, etc. Please inform him that we are all here to support him.

I have a good contact with the Honourable Labour Minister Kamalnath Ji, and I personally request on his behalf. I also have contacts with labor commissioners all over India.

Please bear in mind the importance of social help. I understand that you may not have an HR department, but consider that God is with everyone in times of need.

May Allah help all persons. Inshallah.

Best Regards,
Sajid

If he had applied for leave extension, then the same has to be replied to by the management as accepted or rejected. Often, if it is sick leave where he/she is able to present the relevant supporting documentation from the doctor/hospital, then the same is not denied unless something very specific is mentioned in the service rules of the organization or in his/her appointment letter.

If the reply has not been sent to the organization, there is no reason for him to be terminated, and every opportunity should be given to the employee to explain his long leave.

Saurabh

You are bound by the provisions of the Industrial Disputes Act. It is inhuman to terminate services solely on the grounds that an employee was sick for an extended period. You may submit your advice to the top management regarding the consequences and then let them make the decision. Additionally, you can speak with the concerned employee to hear their side and understand their thoughts on the matter, as well as the compensation package they may be expecting.

Dear friend,

As per your case, there is a reference decided by a high court, whereas "Denial of resumption of duty after sickness of an employee, by the employer, will be construed as retrenchment and not abandonment. Hence, the High Court of Rajasthan quashed the award of the labor court by directing reinstatement to the workman but without back wages."

With regards,
Karthikeyan.R

Hi, if it's a case of cost-cutting, then there is really nothing much that can be done except to ensure he gets his dues as per the appointment letter. He needs to be told of the exact reason for separation, i.e., his leave should not be made out to be the reason.

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