Was I Wrongly Marked Absconded for Informing the SME Instead of My New Manager?

Hi, I was working with one organization. My manager was changed, and I did not have my new manager's contact number. I was on approved leave from the previous manager from 16th October 2012 to 30th October 2012. However, due to certain circumstances, I was unable to join the organization on 31st October. Since I did not have my new manager's number, I called my SME, who was the next supervisor of my team, and informed him that I would only be able to join the office on the 19th of November 2012, which I did. However, my new manager said he considered me absconded because I informed the SME instead of him.

I had a meeting with him, my senior manager, and the HR manager, and the discussion was about why I did not inform my reporting manager. I explained that I did not have his number, so I called the SME. They said that they would not take me back.

Now I have received a letter stating that I owe FnF settlement money to them, which is my one-month salary against the notice period. Should I really have been considered absconded even after I informed the SME of my team? I did not inform my manager because I did not have his number. Should I really pay them the amount as I was not told to serve the notice period but to leave?

Please help.

Regards.

You need to write a letter to the company stating the facts immediately and build up your file. You are advised to report your company with this letter. If your company refuses to accept your letter and does not permit you to report, you are further advised to send this letter by Regd. A.D. with a remark on it stating the fact that this letter was refused to be accepted by the company (name of officer) on ...... at ..... time and hence the same is being sent Regd. A.D. You need to approach an advocate or union representative for further action against the company.

Draft Letter:

To,

Dear Sir,

I am surprised to receive a letter from you dated ...... asking me for one month's salary towards the notice period. I have not resigned from my services, and therefore payment of one month's salary towards the notice period does not arise. In fact, you have denied employment to me from ...... onwards without any grounds or giving me any letter, and hence you are liable to pay me salary for November 2012 - .... days, December 2012 - the full month, and for January 2013 - the full month.

I was on sanctioned leave from ............ to ............ I was supposed to resume my duty on ............ But due to ...... (reason) ...... I could not resume on ......... On ...... I informed Mr........... to whom I report about my inability to resume on ...... and further informed him that I will be resuming on ..........

Accordingly, on ....... I resumed my duty as informed to Mr. ..... to whom I report. But I was not permitted to report my duties. Your above action by which I was not permitted to report duty is not in accordance with the law. Your letter dated ..... asking me to pay towards the notice period is also illegal. I am mentally disturbed due to this illegal action.

You are requested to kindly allow me to attend my duties immediately and pay my salary which is not paid to me for November 2012 to January 2013, failing which I will have no other option but to take appropriate legal steps against the company.

Regards

Communication and Termination Issues

Chill Chill Chill Buddy!! Mr. Shres, the mistake is yours because you have not followed the proper channel of communication. You said that you didn't have the number of the new manager; then you could have called the office landline number (which must be printed on your offer letter/appointment letter). You could even have written an email to the concerned department, but you didn't.

Companies have a policy to terminate an employee if he/she is absent for four continuous days, and you are one of them. Check your appointment letter and read the terms and conditions carefully for better understanding.

Well, your company has also made some mistakes, i.e., they have not sent you a letter stating to resume duties. They may not terminate a person straight away if the person is not on a probation period. If you are on a probation period, then they can terminate your service without assigning any reason, but they must not ask for Notice Pay.

No one is on the right path; you need to check the appointment letter and look for a way out.

Regards,
Chill HR

I would like to make a couple of points on this:

1. Leave is not a right; it needs to be sanctioned. In your company, who is your leave sanctioning authority? Who has been sanctioning your leaves in the past? Is it the SME or the Manager?

2. In case of termination, in most circumstances, the company cannot ask for notice period shortfall because it is the company that is asking you to go and not you deciding to leave.

I feel the best way forward will be to speak to senior line management and senior HR management to resolve the issue. If you have served the company for long and if your past record has been good, it should help you in the discussion. Also, the reason for the extension of leave is important.

If the company does not agree to your request of appointing you back, then take the help of an advocate to reply to the company for the waiver of shortfall notice pay.

Regards,
Ravish

I have seen this happen many times, so my sympathy is not with you. Employees take leave, sometimes shorter, because they know longer leave will be refused (mostly as critical work is pending or the employee does not have leave). Then they call and say they can't join, need an extension, ticket not available, grandmother sick, etc.

Again, the other trick is not to call the relevant manager but a junior and ask them to convey the matter to the manager. It's an old trick that few companies accept.

Tell me, would it not be the easiest thing to tell your SME: "I don't have the new manager's number, please SMS it to me. Or can you please pass the line to him so I can speak to him? Can you please leave a message on his desk with my mobile number?"

They have rightly assessed this as deliberate and preplanned.

You have already had a meeting with HR and your manager, and they don't want you back, so you have no choice in that matter. I assume the Industrial Dispute Act does not apply to you either.

The only point you are right about is that you do not have to pay for notice as it was waived by the management. You were not terminated, I assume. Most probably they asked you to resign. I hope the acceptance was in writing and notice waived was written (or accepted with immediate effect). I hope your resignation letter did not say, "please relieve me with immediate effect" (that would mean you are asking for a waiver and you have to pay).

You need to write to the company and point out that they have asked you not to come to the office during the notice period and instead to leave with immediate effect, and therefore there is no question of notice pay. Tell them you were very much willing to serve the full notice period.

Not having details of your appointment letter or other related matter, I do not know what you mean when you talk of the recovery of money. What is the money that you have to get from them?

Regards.

Firstly, you said you were on leave from 16th Oct to 30th Oct. The leave was approved by your previous manager. How did you know the manager changed? Any source of information? When you got to know your manager had changed, did you try to find out his point of contact? Surely if you were resuming on the date you've mentioned, it would not have been an issue if you personally wished to ask him. But when you got to know you wouldn't be able to resume on the committed date, did you inform him?

Ideally, you should have informed him, the HR in your firm, and any other reporting person. You reported to the SME because you said you didn't have the new manager's number. Appreciate your gesture. But after informing him, you could have asked him how you should reach the new manager so that you can tell him as well. Why did you not keep your HR in the loop of this? Was this a carefree attitude or a genuine cause is something I wouldn't bang on, but I would say the scope for both is equal. You might have genuinely been stuck somewhere, but the major question is why were reporting managers not informed, and why was HR not in the loop.

Please go and meet all your reporting heads and HR together and try to explain the matter again. I won't say that would help you to be back in the firm, but if they could reduce the impact of the absconding title on your relieving letter (depends on the genuineness of your case. As I said, it was a fault on your part not to inform your manager nor keep your HR in the loop for reference.)

In your FnF ideally, there should not be any notice period pay from your end as the service is terminated from their end. If you have any liability (advanced salary or loan or other such outstanding repayments) it would be recovered, though.

Hope the issue is clearer now.

Abscondment and Notice Period Dilemma

I was working with one organization when my manager was changed, and I did not have my new manager's contact number. I was on approved leave from the previous manager from 16th October 2012 to 30th October 2012. However, due to certain circumstances, I was unable to join the organization on 31st October. Since I did not have my new manager's number, I called up my SME, who was the next supervisor of my team, and informed him that I would only be able to join the office on the 19th of November 2012, which I did. Nevertheless, my new manager said he absconded me because I did not inform him directly but informed the SME.

I had a meeting with him, my senior manager, and the HR manager, and the discussion was about why I did not inform my reporting manager. I explained that I did not have his number, so I called the SME instead. They stated that they would not take me back.

Now, I have received a letter stating that I owe FnF settlement money to them, which is my one-month salary against the notice period. Should I really have been absconded even after I informed the SME of my team? I did not inform my manager because I did not have his number. Should I really pay them the amount as I was not told to serve the notice period but to leave?

Questions and Clarifications

What was your source of information - Manager changed? Did you take his point of contact from him/her? When you were granted leave till 31st Oct, you were expected to join from 1st Nov itself. If, however, you had to extend the leave, the extension of leave is at the discretion of your manager. Ideally, it was your manager who had to be reported about this.

Point accepted that you didn't have his number, so you reported to the SME. But my questions are:

1. Did you keep your HR in the loop for reference?
2. Did you ask your SME or HR to provide the new manager's email address or cell number so that you could explain the situation to him?
3. Did you request your SME to relay the information to your manager so that the leave could be granted? (Honestly, it should not be your SME doing this for you as he's a senior; did you attempt this?)

As an HR professional, having knowledge of different practices that people use to extend their leaves, how do you expect the manager and others to believe you when it was your responsibility to inform your manager?

The question still remains - If you could inform your SME, you should have informed your Manager as well as HR for reference.

Resolution and FnF Settlement

The way to resolve this problem is to have a meeting again and discuss the future impact and how it could be resolved. I doubt they would take you back as the additional leaves you took were not reported to the Manager.

(It was also your duty to find out if the manager was informed, even if you asked anyone in the firm to inform him on your behalf. Everyone has their own role to play, and one can't blame others if, while doing their job role, they forgot to mention you.)

About your FnF:

If you do not owe anything to the firm (advanced salary/loan or any other liability), you are not required to pay anything. Paying against the notice period - Notice period arises when you resign, and if you wish to terminate immediately, you would have to buy out your notice period.

Please have a talk with HR and understand why you should be paying the notice period.

Wishing you luck.

Regards

Dear Members who responded to the querist,

I do respect your feelings. No doubt, the querist is wrong. He has committed misconduct. However, I feel that the management is also wrong in taking action without giving due respect to the law and procedures laid down under it. Additionally, the action taken is disproportionate. The querist overstayed his sanctioned leave for 18 days. He made an attempt to inform the company through his immediate superior about his overstay of sanctioned leave.

According to S.O., the querist is liable to 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. He is also entitled to be kept on the waitlist/badli list.

Termination is unwarranted in this case, and that too without following the law, in my view.

It seems to me the company has not issued any letter of termination to the querist. The querist also has not resigned. The querist is in receipt of a letter from his employer stating that he owes F&F settlement money to the company towards the notice period. All these things are not appropriate.

Under the circumstances, I strongly feel the draft letter given by Anonymous is very appropriate.

Dear Chill HR,

No company can have a policy to terminate any employee in the manner you mentioned. If you have such a policy, it will be illegal ab initio. My intention is not to hurt you but to correct you. Please do not take it in another way.

Regards

I will wait for the querist to respond. I have a strong feeling he was asked to resign, and he did. A meeting was held by his HR with him and his manager, and he was given a chance to explain. After which, they decided that his explanation was not satisfactory. In that case, I think the terms of the Standing Order (SO) are also satisfied.

Thank you so very much for your efforts; highly appreciated. I was aware of the change in my manager, but I was not under his direct team; instead, I was in a different project. That is the reason I did not have his number. I was in my hometown when this happened, and it occurred only because of a family traditional matter that could not be disregarded. I asked my Subject Matter Expert (SME) to inform my manager as he was not nearby when I called him, and my SME passed on the information.

I explained everything upon my return. I was not instructed to submit a resignation letter but to return the company's property (ID Card). Absconding occurs only if you fail to inform someone in a higher position than yours.

Could you shed some more light on this situation, please?

Thanks

Disproportionate Punishment for Misconduct

The punishment awarded to you by your management is disproportionate to the gravity of your misconduct. A previous record of service has to be taken into account while awarding punishment. Proper procedure has to be followed before awarding punishment, by which the natural justice of the law is regarded. The court never supports such termination by an employer. In termination, there should be a very strong reason or ground. There are many case laws in this regard.

In your case, overstaying 18 days is not a strong enough ground to terminate your service. Also, no letter of termination has been given to you. There has been no oral termination. Even in the case of losing lien on employment, the punishment should be to keep the employee on the waiting list for a vacancy. Additionally, there should be some written communication regarding this matter.

Under these circumstances, I once again strongly recommend the remedy suggested by the anonymous individual.

I wish you good luck!

I can see my original assumption was right. Your leave extension was planned, not an emergency. In all probability, you were refused leave for the extended period. Obviously, the management would not accept it.

Back to the main problem, though: you did not receive any letter from them? Relieving letter, termination letter, nothing? What will you show to the next company when you join? They will ask you for a relieving letter, right?

It looks like you have a very smart HR department.

You were 18 days late, then you were not allowed to work when you joined. I think attendance was not recorded. After that, another 45 days passed. There is no record of you informing your SME, no record of you coming to the office after that. Not being there for 2 months is a perfect ground to declare you absconding.

You better figure out what you want to do.

If you have got another job, then just meet the old company and get them to change the status to resigned and get your relieving letter.

If, on the other hand, you want to get back to them (and my above assumptions are right), you will have to raise an industrial dispute for unfair termination on the grounds other members have stated, but you will need a good lawyer/consultant/union support and lots of patience to wait for the relief.

I thank those who have encouraged me to study more and read more, especially Dear Chill HR. I wish to draw the kind attention of all the dignitaries who have participated in this discussion to the Supreme Court Judgment in Uptron India v. Shammi Bhan. In this case, the Supreme Court has ruled that a clause in a service order stating that the services of an employee who overstays leave would be automatically terminated is in violation of Articles 14, 16, and 21 of the Constitution. The court further emphasized that taking any action based on such a rule without giving the employee an opportunity to be heard would be entirely unjust, arbitrary, and unfair.

I once again strongly recommend that the person seeking advice proceed with the letter as suggested by Anonymous if they have not already done so.