Employee Absence Without Notice: Can I Legally Terminate Them? Seeking Guidance

Dear Seniors, I have an employee in my company who has been irregular; he has not informed anyone of his absence for the last 5 days. Can I terminate him for this reason? He is also not worth retaining in the company.

What Can I Do?

Should I give a retrenchment notice or fire him directly? Would there be any legal issues? Kindly guide.

Regards,
Vidhya Bhavsar

Addressing Unauthorized Absence in HR Policies

Look into your HR policies regarding unauthorized absence. If you have a policy, follow it. On the other hand, if you don't have a policy, make one. Explain it to the employee, ensuring you mention that in the future, if this behavior repeats, the company reserves the right to terminate employment without notice or pay as it is considered gross misconduct. Obtain a signature to confirm that you conducted a counseling session with the employee regarding this issue and document it. If the behavior persists, proceed with termination.

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Send him a recorded delivery letter inviting him to a disciplinary meeting. Keep a copy in your records. Now keep tracking it online to see if it's delivered.

Wait for a few days after delivery. If he does not show up, send another letter inviting him to the meeting and mention, "If you do not respond or attend the meeting, the meeting will take place in your absence, and you will not have an opportunity to appeal the outcome."

Track the delivery online, wait for the meeting day, and if he doesn't show up, create a dismissal letter for unauthorized absence and send it to him. Do not provide any salary, balances, or employment references to that candidate.

Please clarify whether he is a permanent employee or a contract employee. If he is a permanent worker, follow the certified standing orders of your company. In the absence of certified standing orders, the Model Standing Orders Act will become applicable.

Steps to Address Unauthorized Leave

First, you should send the show cause notice to him for unauthorized (without prior permission) leave to his address via registered post. Do mention the clause of the SO (Standing Order) in the show cause notice and the period of time to reply. If he has not received your show cause notice, conduct the domestic enquiry as per the principles of natural justice.

Once guilt is proven, issue a second show cause notice for proposed dismissal and obtain a reply from him. Finally, issue a dismissal order.

Importance of Following Natural Justice

What Mr. Ram says is absolutely correct. Before making a dismissal order, follow the principles of natural justice while conducting the enquiry. "No one should be punished without being heard." Give enough time for his reply. Even if we don't receive any response from him, record all the details in the enquiry proceedings and issue a final dismissal order. If we fail to follow the principles of natural justice, the dismissal order will be invalid.

Regards,
D. Pannerselvam
[Phone Number Removed For Privacy Reasons]

What Mr. Ram Naresh said is acceptable to follow, but this is not a very nice policy for an organization, such as not providing salary balance. The organization can pay the salary for the number of days he was actually present and worked.

Thank you.

The comments and path suggested by Mr. Ram and Ms. Priya are fair enough. Go through it and then fire him, unless you want to attract a long and expensive legal fight. Initially, with the Labour commissioner, and then the case will be referred (if not settled) to the Labour Court. Judgments in such cases mostly favor employees if legal procedures were not followed at the time of firing. The court may order, after 4-5 years, for reinstatement with full or half back wages, along with expenses incurred by employees during the legal battle with your company. So, take care.

Thanks,

Regards

Please follow the steps outlined below:

1. **Issue an Unauthorized Absenteeism Letter:** Advise the employee to report for duty immediately and submit a written explanation for the unauthorized absence mentioned above. If there is no response, issue a second letter.

Date: 2nd February 2011
Registered with AD
Mr. [Employee's Name]
Address

Subject: Unauthorized Absence

Dear [Employee's Name],

It has been reported that you have been absent from work since 29th January 2011 without proper initiation or authorization. You are advised to report for duty immediately and provide a written explanation for your unauthorized absence. Failure to do so will result in the assumption that you are no longer interested in your employment with us, leading to necessary disciplinary action.

Yours faithfully,
[HR Manager's Name]
For Company

2. **Issue a Second Unauthorized Absenteeism Letter:** Follow the same format as the previous letter and reference it.

3. **Issue a Show-Cause Cum Charge Sheet Letter:** As per your factory's certified standing order:

"You are advised to resume your duty immediately and submit a written explanation within 24 hours of receiving this notice. Explain why disciplinary action should not be taken against you for the alleged misconduct mentioned above. Failure to comply will be considered as a lack of explanation from your end, indicating a lack of interest in your employment with the company. The matter will be dealt with accordingly."

Thank you.

Guidelines for Handling Employee Irregularities

1. On the baseline, follow Mr. Pannerselvam; he has explained the procedure in detail. In all cases, give the benefit of the doubt to the employee.

2. Mr. Ram Naresh is acting emotionally and suggesting things that can backfire. (With due regards to Mr. Ram Naresh, no pun intended.) Mr. Ram Naresh, add a clause in the policy. Even if an employee turns up 2 months down the line, let the case be referred to the highest level in HR/line manager. Give him a chance to explain and let the C-Suite decide.

Global Best Practices for Employee Attendance

3. See what the best practices are happening globally. Let me enumerate a few examples for you:

- Attendance bonus at 10% of gross. This is quite a significant sum for every employee, and the only thing you need to do is not take unscheduled leaves.
- Coming late or leaving early is not a bane; only unscheduled leaves affect the company. (Please note this may be contrary to what you may have read or seen around you, but this is a proven strategy enumerated in COPC (MBNQA).)
- Let the company reserve the right to have an employee examined by its doctor, and one of the seniors can visit him at his home.
- Do a simple analysis of leave patterns in your company, e.g., by day of the week, randomness, immediate supervisor, work area, etc.
- At certain places, work is stressful, so people want to shift or leave.
- It may happen that an immediate supervisor is vindictive or doesn't have the skill sets or the right attitude.
- Too many random breaks/leaves may mean the employee is on the way out.
- Prepare a roster at least 7 days in advance.
- Track variances.
- Overtime/extra hirings imply the manager has zero planning ability. (Please note 99% of managers will find it difficult to digest this.)
- One of my employers implemented a cutting-edge method. We used to track performance on a quarterly basis. That's all; no attendance was marked.

Let me know if you have further questions.