How Should I Proceed with Terminating an Employee for Repeated Unauthorized Absences?

Employee Termination Due to Unauthorized Absence

This is in reference to an employee termination due to unauthorized absence. We have a permanent employee who has a habit of habitual absence. Despite issuing him a show cause and warning note, he is once again on unauthorized absence for the last 12 days.

In this regard, I dispatched the first letter for unauthorized absence (with a 48-hour time frame for explanation) to both his permanent and temporary addresses via registered post dated 15/11/12. However, we have not received any response or reply from him. Subsequently, I issued him the first show cause notice with a 48-hour deadline for explanation dated 21/11/12. Until now, we have not received any reply from the employee, and he is still absent.

What should be the next step in this matter if I decide to terminate the employee? Kindly advise on the continuous process that should be followed in this situation.

Regards,
Vishal

First of all, does your company have a certified standing order? If yes, please prepare the show cause notice in accordance with the standing order clauses. I am attaching the procedure for disciplinary action. Please review it carefully.

Kindly prepare a domestic inquiry notice and send it to his most recent known address. If it is not delivered and returned, place a copy on the notice board and publish it in the local language newspaper. Wait for a few more days. If there is no response, proceed with the inquiry in his absence and send the findings to his address. Finally, close the file. Please avoid rushing through the process and ensure that the principles of natural justice are followed diligently.

Regards,
Alphonse
[Phone Number Removed For Privacy Reasons]

Two show cause or warning letters are enough to remind an absconding employee. If you don't get any response, you can send the termination letter to his address.

Also, make an F & F settlement statement and send the same to the employee's address.

If you don't have any policy or process regarding absconding employees, then create one and amend it in your company policy.

Notwithstanding the status of Standing Orders (pun intended!), first and foremost, please have clarity in your mind as to what the end goal is. How does the management and his immediate HOD look at him? Do you want him back (as an HR, you must weigh this option carefully before taking any action) or do you want to get rid of him? Both goals have a different set of solutions. Homework is critical in such cases.

In this case, you have already issued two Show Cause Notices, so there may not be recourse, I guess.

Regards,
Kalpana Iyer

In this case, initially, you have to issue a final reminder (sent via registered post in the latest communication) in which you will advise him/her to join duty within 15 days, failing which will lead to the termination of his/her employment. Wait for the next 15 days. If the employee continues his absenteeism, you should issue a charge sheet against him.

Final Reminder and Charge Sheet Process for Employee Absenteeism

In this case, initially, you have to issue a final reminder (via registered post in the latest communication) in which you will advise him/her to join duty within 15 days. Otherwise, there will be a cessation of his employment.

After waiting for the next 15 days, if the employee continues his absenteeism, you should issue a charge sheet against him.

Dear all,

Please check if there is a provision for striking off a name in the Model S.O. applicable to Uttarakhand Industries. Assuming it is there, an opportunity letter is to be issued stating that the employee has been absent since (the first date of absence), and the provision for striking off the name under the Model S.O. is applicable in this case. Please note that only working days should be included when calculating the number of days, and this opportunity letter should be issued after the specified number of days of absence as per the Model S.O. have passed.

If the employee does not report for duty within three days of receiving the letter, their name will be struck off the company's rolls. If the employee fails to show up by the specified date, you may take action to remove them from service. It is crucial to ensure the proper service of the opportunity letter as per the rules. In extreme cases, a newspaper advertisement may be sufficient. Opting for disciplinary action is usually the preferred route, and the process is already available to you, thanks to Alphonse.

Regards,
KK

Provision for Striking Off a Name in the S.O.

The provision for striking off a name in the S.O. is applicable in case a workman remains absent beyond the period of leave originally granted or subsequently extended. Such a workman shall lose his lien on his appointment unless he (a) returns within 8 days of the expiry of the leave and (b) explains to the satisfaction of the employer his inability to return before the expiry of his leave. In case the workman loses his lien on his appointment, he shall be entitled to be kept on the badli list.

Kindly note that striking off a name from the muster roll under the above circumstances cannot be arbitrary. The workman should be given an opportunity to be heard.

Thanks with regards.

Regards,
Keshav Korgaonkar

Shantadurgaent.com, Insurance Advisors, Corporate Advisors, Legal Advice, Wage and Salary, Labour Compliance Audit, SSI Registration, NOC from

I am not asking Mr. Vishal to send the termination directly. The employer has requested the employee to report on the dates mentioned in the warning letter. After sending two warning letters, if the employee does not turn up, the company can send a termination letter. Here, the company has given two chances for the employee to explain his absence. Still, if the employee doesn't turn up, action can be taken against the employee.

As you referred to the Mumbai HC in the Mahamadsha Patel v/s Mastanbaug case, here the employer did not send any notice to the employee about termination. So, it came in favor of the employee. Moreover, the incident happened in 1988, and the case was held in 1994 - 1997. ([Mahamadsha Ganishah Patel & Anr. vs Mastanbaug Consumers' Co-Op. ... on 24 June, 1997](http://www.indiankanoon.org/doc/1843741/)). Today, every company drafts the policy crystal clear on every aspect.

Today, every company has its own HR manual, policy, and appointment letter which clearly state the termination clause of an employee.

Dear Senior, Yesterday, an employee came to our premises, and I instructed them to "give your explanation against the show cause," but they didn't provide it. After that, they told me that they were on unauthorized leave due to personal reasons, not for medical purposes. Following management's instructions, I informed them to go back, saying I would call them for their justification through a written letter to determine if it is genuine or not in the grievance handling committee. Otherwise, they should give their explanation. After that, they left. Now, what can I do in this situation? Management wants to suspend their service for three months. Is it possible to order such a punishment? If it is possible, what monthly subsistence allowance should be paid to them under suspension? Waiting for your valuable advice... Regards, Vishal

Dear Vishal and all,

Now that the employee has returned, his explanation is inadequate and unsatisfactory. Even though the management wants to suspend him for three months, there would be no provision in the Model SO for the same. Therefore, the option now is to take disciplinary action by issuing a charge sheet, and a punishment as provided under the Model SO could be imposed.

Regards,
kk

If the employee returns, ask him to provide a written statement explaining why he was absent without authorization and without any prior notice. If the reason is found unsatisfactory, issue him a charge sheet and place him on suspension pending an inquiry. Conduct a domestic inquiry against him. If the charges are proven, he may be terminated from the company's services. During the domestic inquiry proceedings, he should be paid a subsistence allowance as per statute.

Regards,
Magesh.

Dear Mahesh ji / Dear All,

Pros and Cons of Employee Suspension Pending Inquiry

Can you or anybody please elaborate on the pros and cons if the employee is suspended with a pending inquiry and also in case he is not suspended pending inquiry? Why are you not suggesting direct termination to him as suggested by someone earlier? The questions asked by me are not to test you or anybody but to invite further discussion on this matter, which may be fruitful for all of us.

Thanks and regards,

Keshav Korgaonkar

In the given conditions, you have sent a Show-Cause Notice via Regd. A.D., but have not received a reply from the worker. Please let us know whether you have received the Regd. A.D. receipt with the worker's signature. If yes, then please keep it in his personal file.

If the worker has not received the Regd. A.D. and the post has returned to you, then also please keep the letter (without opening the packet) in his personal file with a remark from the post office.

Using Model Standing Orders

Now, even if you do not have Certified Standing Orders for the company, you can always use Model Standing Orders (Industrial Employment Standing Orders Act). You need to use the clauses while drafting the Charge Sheet.

Please send the charge sheet mentioning all the misconducts, the date of the domestic enquiry, the place, the name of the Enquiry officer, and reimbursement of conveyance charges if the place is other than the place of work or the factory or office where the worker normally works.

Conducting the Domestic Enquiry

Conduct the Domestic Enquiry with the Enquiry officer and give a fair chance to the worker to defend himself. Include all evidence like Warning Letters, Show-Cause Notice, the worker's reply, attendance register, leave register during the enquiry. Ensure that all this evidence is included in the domestic enquiry report. If the worker is present at the enquiry, then take his signature on the enquiry report.

Once the enquiry is concluded, issue the enquiry officer report with a show-cause notice to the worker, asking him to state any reason why action cannot be taken against him. Request him to reply within 48 hours of receiving the letter. If he is absent, then send the same through Regd. A.D.

Issuing the Termination Letter

If you do not receive a reply from the worker after the stipulated time, then issue the termination letter to him. Please note that the person who signs the termination letter for the management must be the same designation or above as the person who signed his appointment letter.

Regards,
Avinash K.

I have herewith attached the second letter dated 21/11/12, which I dispatched to his permanent and temporary addresses via registered post. However, to date, I have not received the undelivered copy of the same. Please check the attached second letter and suggest whether I should send him a priority domestic enquiry letter or a charge sheet. Waiting for your reply...

Regards,
Vishal

The contents of the letter are alright. However, I think you need to change the last paragraph of the letter as follows: "You are therefore directed to report on duty with a satisfactory written explanation within 48 hours from the receipt of this letter. Failing which, appropriate disciplinary action will be taken against you."

Please don't use "Yours faithfully" as you are directing him to give a satisfactory written explanation. Wait for 4-5 days or until you receive the Registered A.D. receipt. If you don't receive anything, then proceed ahead with the Charge Sheet for Domestic Enquiry.

Regards,
Avinash K.

Seeking Advice on Employee Punishment

Kindly suggest what suitable punishment, as an order of punishment, we should provide after a domestic inquiry. In the previous year and this year, the employee was unauthorized for more than 10 days on three occasions and sometimes less than 10 days. The same employee is also from the Union, so he has no fear.

When I searched the attached Model Standing Order for punishment, I didn't find the same punishment.

Please suggest and advise on this matter. Waiting for your positive reply...

Regards,
Vishal

Dear All,

Can you help me by providing a soft copy of the Karnataka Industrial Employment (Model Standing Orders) Rules, Schedule-1 applicable to non-ministerial staff? I want to refer to misconducts.

Regards,
Roshan B.L

Industrial Standing Order (1946)

Dear Friends, this query is about the Industrial Standing Orders (1946). As regards to termination of employment, the Model Standing Order says:

(1) For terminating employment of a permanent workman, notice in writing shall be given either by the employer or the workman—one month's notice in the case of monthly-rated workmen and two weeks' notice in the case of other workmen. One month's or two weeks' pay, as the case may be, may be paid in lieu of notice.

(2) No temporary workman, whether monthly-rated, weekly-rated, or piece-rated, and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated. However, the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity to explain the charges of misconduct alleged against him in the manner prescribed in Paragraph 14.

Can this be implemented? Or is there any amendment to this rule? Can somebody throw light on this with examples or justifications?

Regards, Srinaren