Can We Legally Reinstate an Employee Without Breaking Her Service Record?

Hello Sirs,

My name is Lalitha, and I am working as a Manager HR in a software company with 100 employees. I need your help with an issue.

One of my employees resigned due to personal problems and was relieved three weeks ago. All the relieving formalities have been completed and communicated to the Finance and Operations departments. However, she now wishes to rejoin us, and we are keen on having her back as she excels in her work, and we do not want to lose such a valuable performer. She is requesting that the period after her relieving be considered as leave without pay, and she wants to continue as an existing employee rather than rejoining as a new employee to avoid a break in her experience and seniority. Is this legally possible?

I kindly ask for your valuable suggestions as I need to resolve this issue promptly and inform my management.

Awaiting your reply.

Thanks & Regards,
Lalitha :)

No problem. Three weeks can be adjusted as you are willing to retain the same employee, and his full and final settlement has not been done in the books of accounts.

This is not a complicated case; it's a simple adjustment of your register of leaves and roster.

Partho

This is a simple case of adjusting records of leaves and muster roll. Since you have not been relieved and your full and final account has not been settled on record, and entries have not been passed into the books of accounts, it is possible to revert back to adjusting leaves for the gap in service.

Regards,
Partho

Hi Lalitha

As per your description it seems to me that your company is not that big… but let me take it case by case

Case 1

Employee Joins and you consider her absence as Leave without pay

In this case you first need to take the permission from the management, which I think you already have so that would not be an issue. You need to ask accounts and operation to reverse all the process and processings, which I think, would be a tedious as well as a little complicated also. On the other hand if you will consider this kind of request you are not putting a good incident in front of your employees as many of them can leave your company by giving some personal reasons and will come back whenever they want… Where as all this should not happen in a company as it sets a very bad trend for the organisation.

Case 2

Employee Joins and you consider her as New Joinee

This is the correct procedure one should follow…. Treat her as a New Joinee with all fresh records and explain her your constraints behind that and assure her that this formality will not affect perception which company has formed for her …

I think making her join like a New Joinee will not have so much of problem:)

Hi Lalithaj,

Appreciate the response of Pankhuri..which is the right way of looking at the situation as faced by your organization.

Indeed it is a good practice to re-hire ex-employees if there are no issues related to non –performance or work related issues.

Regards,

Rajat

Dear Lalitha,

Please consider the management's interest regarding an employee who joins as a fresher. The following benefits accrue to the organisation in such a scenario:

1. The gratuity period will mature at a later stage.
2. She will be on probation for six months (or as per company policy), and the employer will have the right to terminate her easily.
3. Seniority in working - other juniors can take advantage of their seniority over her.
4. CL/SL entitlement may be less compared to other options.

If she takes leave without pay, the aforementioned options will have a negative impact.

In conclusion, you may consider appointing her while taking into account leaves without pay for absenteeism.

Best Regards,

Sajid Ansari - Delhi

Dear Lalitha,

I am sure enough guidance has already been given by some experts above.

Suggestion:

1. This is a good scenario for you to introduce the concept of gestation period to the management, which we used to follow in my company. Always have approximately a 1-month gestation period after an employee resigns. This gives space for employees to analyze their own decision, which at times may be a wrong one.

2. During the gestation period, the only settlement made is the current month's salary, with other benefits being provided after a month. Employees may complain about this, but it is beneficial for both employees and employers.

3. Besides, the company will save its resources and time by retaining an old employee rather than hiring a new one. You know the parable, "A prodigal son had more love than the one who was with the father all the time for obvious reasons."

4. Financially, if no settlement has been made, then there is no hassle at all. Otherwise, the only option will be re-appointment. (Financial experts, please advise if I am correct).

5. Obviously, the employee in this case wants to recover the lost months during absence, which cannot be granted if a settlement has been made. This would serve as a lesson for her in the future. However, if no settlement is done, then as an employee welfare gesture, the management should consider allowing the request for the employees, which will create a positive atmosphere, especially for good workers who are pillars of the organization. Of course, bad workers may try to take advantage of this, but HR is there to manage such situations.

6. Pillars of the organization and honest employees should be rewarded, and every effort should be made for their well-being, which is the foundation on which all great companies strive.

7. It is much more profitable to retain and support good employees than to lose them and continually invest time and resources in training new employees.

Regards,

Ukmitra

Considering the information provided and assuming that the employee's resignation is accepted through the proper channel and is separated from the company, it is not healthy, as well as possible, for the company to accept his withdrawal of resignation and reinstate him in his own position, further treating the period of absence as leave.

There is also a need to relook into the need for engaging the employee in case he/she possesses exceptional knowledge/skills that are rarely found in the market. Justification should be noted.

In case it is compulsory to reinstate him, definitely there should be no continuity in service, and he needs to be treated as the junior most in the grade when considering him for promotion to the next grade. Reinstating the employee with seniority in the grade may demotivate loyal employees.

However, what I strongly feel is that reinstating the resigned and relieved employee after a reasonable time may set a precedent for other employees to go for a trial and error method for better appointments elsewhere without fear of losing their current job. Without stating, HR is sending a wrong message to employees that the company is at the mercy of some employees, and they have the freedom of entry and exit.

Dear Lalitha,

As requested by the employee, she may be taken back into the service of your organization, since you did not settle her final accounts. When she wants to come back and your organization is also willing to take her on account of performance, nothing is wrong in treating the absence period of this employee as leave.

By treating the said period as leave, the employee will get the benefit of continuity of service so that for the purpose of payment of gratuity, etc. Moreover, if you consider her case sympathetically, she may be more loyal to your organization and render her services to your organization considerably for a longer period.

NVRao
Hyderabad.

I fully agree with Pankhuri. Take her as a new employee rather than setting the wrong precedent in the company. This type of decision also links to company culture and policy, so we have to be more conscious.

Talk with her and explain the reason for doing this.

Dear Lalitha,

As the employee had been relieved three weeks earlier and now she wants to rejoin, she may be allowed to rejoin in the same position and salary. However, she should not be considered a continued employee but should be taken on the payroll effective from the date of resumption of her duties. Since it was her own decision to get relieved and then rejoin, she should be given a fair chance to serve the same employer but not on her own conditions.

Given that she is being given a chance to rejoin, this should not negatively affect the organizational atmosphere, and it should not set a precedent for other employees to repeat the same behavior. The rest is at the discretion of your management.

Thanks,

Amit Anand Gera

Madam,

It is not a problem from our HR side. Please review her past service records and seek opinions from the deciding authority, her previous head of the department/team leader/project manager, regarding her rejoining.

If everything is in order, you can issue a letter to her informing that her rejoining request has been approved by the management, allowing her to continue in service. Upon her return, maintain her on the same roll number and PF/ESI number, considering the gap period as leave without pay.

Dear Lalitha,

I have also experienced a similar situation. One of our employees joined the company, but within a month, he went on a two-month leave citing personal reasons. When he returned after two months, we informed him that we did not consider his initial joining date.

Regards,
Chitra

Dear Lalitha,

I support all who are in favor of a smooth comeback and rejoining of an ex-employee. The employee was a good performer, and their return is really good news. It will save on hiring costs as well as the significant cost of training and capacity building. A new employee would typically take at least 4-6 months to understand the system and work culture, whereas the returning employee could readjust in just 2 to 3 days. One major difference between government machinery and corporate is the flexibility of policy, so I do not believe giving her the green signal for leave adjustment and rejoining is a problem. Furthermore, I do not think accounts and operations would have to endure any pain for the reversal of the process.

Create an example and make it clear, so that other employees will have the assurance that the company supports good employees.

Thank you.

Hi,

I believe that the employee should not be taken back as a new employee, as the employee had left the employment for personal reasons. Retaining old employees is important and necessary. However, rehiring the same employee may not set a good example for others and might tempt them to think that anything and everything can be done in the company. Moreover, the company has its own rules and regulations that must be followed, and they cannot be tailored for each individual based on their acquaintances.

While the employee may be valuable, and the organization may have a need for the employee, once she has resigned and left, she should not expect to be reemployed by the same company in continuity.

It's not possible to adjust, but you can consider her as a new employee by completing all joining formalities.

Bhimrao Gadade
Assistant Manager - HR
9766711556

Hi all,

The same incident happened in our office: a resigned staff member returned after 2 months to reconsider his resignation. We decided to have him continue but as a new staff member (except the PF number remains the same); all other details such as employee ID will be new, and the salary will remain unchanged. Therefore, my suggestion would be to continue as a new staff member and show other staff that our company is the best compared to others.

Creating this atmosphere, I believe the staff will be able to make the right decision amidst a wandering mind.

Thanks,
Sundar

In this particular case, you can rehire the separated employee for the same position that she held when she left. This should go fairly well with the employee and her coworkers (a demotion or a promotion is definitely not recommended).

However, in the long run, to provide clarity on such issues, it's better to have a policy in place that will clearly define the conditions under which rehire would occur, the cool-off period, and other such details. This will ensure standardization and also make things more transparent and acceptable to all stakeholders.

These details should form part of your Lateral Recruitment Policy Document. For any queries on policy formulations, feel free to contact me.

Regards,
Girish S.

Dear Ms. Lalitha,

Greetings.

It's good to know about the usage of the site. I would like to share my thoughts on the matter:
- There is no bar for rejoining.
- If the concerned employee is worth retaining, the intervening period may be adjusted as leave without pay.
- Legally, this is valid.

Best wishes,

Sincerely,
Narendera K Gupta
Ex VP HR
Senior Group of Companies
Nirmal Chhaya
Flat No. 182, GF
Pocket D 6, Sector 6
Rohini, Delhi 110085
Mobile: 9810685704
Email: hrmnkg13@gmail.com

If you are confident in her performance, just take her in... nothing else matters. It's good to retain the costliest asset of any company - the PEOPLE.

Forgive and forget always pays back in the long term. Just allow her to join as per her request, as long as you and your management feel that her working in the company is good for the organization. Do not worry too much about setting a wrong precedent. Just make the decision based on whether your company needs her back or not. If yes, then do it in the most positive manner. She should not feel that she has been victimized; otherwise, the whole purpose of hiring her back is lost. If your company does not want her, then say goodbye to her.

Vinod Jain

Dear Lalitha,

Carefully going through your predicament regarding the rejoining of employee(s) after his/their resignation, I have the following remarks and recommendations:

1. Your employee has tendered his resignation and it was duly approved by the management. It is understood that all legal protocols have been observed and all parties are free from legal obstacles. Since the assignments of the finance and operations departments were completed.

2. Referring to your manual regarding the rejoining of employees, do you have any policy on this matter? If yes, you just need to apply it. If not, you cannot act alone at your own volition. Therefore, you need to formulate a policy that addresses this matter and have it approved by the management. In the meantime, the employee must wait.

3. Assuming that you do not have a policy on this matter, always keep in mind that the safest way is to follow the law to avoid compromising both the employee and the employer. Especially since there is no existing policy on this matter and the consequences in the future are unpredictable.

4. When the employee resigned and it was approved by the management, that terminated the relations between the employer and the employee. However, the monetary obligations that require unilateral action by the employee to collect remain. Therefore, if the employee wishes to rejoin the company, they should go through the normal procedure of applying and follow the stages of your recruitment policy. They will join as a new employee.

5. As you mentioned, the employee was the one setting the conditions of his return. In this situation, you are unaware that the employee is working hard to secure a strong position, which is a legal maneuver that could be detrimental to the management's interests.

6. To stay on the safest road, in the absence of a rejoining policy, create one. This will protect both the company and the employee from any future legal disputes.

Best wishes,

Dr. Dionicio D. Viloria, SPHR
Sultanate of Oman

I agree with tpankuhuri's suggestion. In case a person rejoins your organization, it is beneficial for both the organization and the staff. First, obtain consent from top management and instruct the concerned staff to reverse the account in question.

Yes, this could be done. As this is an internal issue, if management wants the same, the resignation letter could be rejected, and if accepted, the relieving letter could be withdrawn. This is not a major issue at all.

I agree with all the seniors given their suggestions. But we have to think of the other side. If she wants to rejoin with the original date of joining, please verify whether the employee is pregnant. Because, as per the rules of maternity benefits, she will be eligible for the same.

Dear [Recipient],

No harm would be caused by taking her back. For company policy, many of the views expressed are for being tough. But take the call of your CEO. Humanism plays a major part. Imagine she is saving you 8.33% in recruitment costs.

Best regards,
Rajan Associates

Though it will be good to re-recruit a resigned employee, please verify the reasons for resigning thoroughly as the employee is returning in 3 weeks. If the reasons are genuine, it is worthwhile to treat the off period as leave.

Kannan

Dear All,

I fully agree with Ms. Latika, and I appreciate her way of solving this case. Through this discussion, I gained an added advantage as I am currently working on a Human Resource Management System and completing a manual policy for a company. I was a little bit confused about the same issue.

Kind Regards,
Asha Kiran

Dear Lalitha,

We can consider rejoining, but questions arise regarding Income Tax computation, PF Yearly Returns, and whether the ESI/PF numbers need to be the same or different.

Hi All,

I agree a short span can be treated as rejoining on LOP. What if the employee rejoins after 2-3 years? Should we consider them as a fresh joiner?

Let me know your thoughts.

Thanks,
Sirisha