Superannuation- If The Employee Does Not Accept

What if the employee refuses to accept the superannuation notice even though the employee is 67 years old? Why should we not consider termination in this case?

Dear Lakshmi,

This seems like a strange case!

1. What is the retirement age as per the company's standing order/policy/terms of appointment?
2. Why was he allowed to work beyond the superannuation age?
3. Was there any order/communication for retaining him beyond the superannuation age?

You simply need to issue him a letter mentioning that your services with the company come to an end on account of your attaining superannuation age, effective from [date] after office hours. You shall receive your dues on [date]. Management appreciates your long association and contribution.

After issuing this letter, deactivate/discontinue his ID/Attendance card, strike off his name from the system. Show as separated on account of superannuation.

You need not enter into the termination process and create problems for yourself.

Despite all these actions, if he physically enters the premises, you can seek help from the police.

Regards,
Shailesh Parikh
Vadodara, Gujarat
99 98 97 10 65

Dear Lakshmi,

Shailesh has given a very crisp solution. I totally agree with him. I am surprised at how the employee worked until this age. I would request you to please elaborate on the circumstances.

Mr. Shailesh, Mr. Kamal Kant,

This employee has worked in this organization for 45 years. He is very close to the Director and his family. Yes, this company is a family-owned company; they treat the older employees as their gurus. Whatever... I have joined this company very recently, and hence this seems weird to me.

As Mr. Shailesh has said, we would stop any employee from coming into the office premises in some other company but not this.

Lakshmi

Dear Lakshmi,

I hope you are not deducting his contribution towards PF or other statutory enactments. If your company wants to retain him in the system, they can, but you should keep him as a consultant. Only TDS would be deducted from his payout, which shall be termed as Monthly Compensation and not salary.

"Old is gold" is true. He must have a lot of life and business experience, which may benefit the business. However, in my opinion, you should propose to the management to keep him as a consultant.

Dear Naresh,

As your username suggests, I guess it is your date of birth. If so, according to it, you have not attained the age of superannuation, which is generally 58 to 62, depending on the company. Therefore, you are not entitled to superannuation benefits.

Regarding gratuity, you must work for the same employer for at least 5 years continuously, technically meaning at least 4 years and 240 days of service without any break in service.

Please let us know your exact age and your length of service with your erstwhile employer so we can provide better guidance.

However, it is not right to quit any company without notice. You could have contacted HR for your grievances. If they had not listened to your requests, you could have simply resigned from the company and served the notice period. I believe that would have been an ideal scenario.

Dear Lakshmi,

Superannuation age must be mentioned in the joining letter, without which the company cannot enforce the retirement policy on the employee on its own. However, if you are not satisfied with the performance of the individual, due course of action can be taken. If the individual is not performing up to the expectation of the management, the same can be conveyed to him. If his performance, attendance, etc., are affected by his age, then the same can be used to ask him to move out. Since you have mentioned he is regarded highly by the management, you should consult them before taking any action. I recommend HR should handle such cases with a lot of poise and dignity, since any improper action will signal to other employees that the company does not care for commitment in the longer run.

Sunil Kumar

I agree with Mr. Shailesh Parikh. This is the only amicable way of getting away from such a case.

Sandeep Gijare.
Anchor By Panasonic

The separation, as suggested by Shylesh, will amount to retrenchment if the employee is a workman. The age of superannuation should be mentioned in the appointment order or standing order. Otherwise, it will be considered retrenchment.

Varghese Mathew
9961266966

Dear Mr. Kamal,

He is very much focused on the system of Statutory deductions of PF, PT, etc. He somehow convinced and arranged for the superannuation to be completed and provided a letter as a consultant. He will cease all his statutory deductions effective from 1/5/2013 but will continue to work.

Good Lakshmi,

As I said earlier, you will benefit from his experience. Also, please provide him with his gratuity, PF settlement, leave encashment, or any other entitlement, etc. Good job done.

Lakshmi Subramanian,

You need to first ascertain whether you have stipulated any age as the age of superannuation either in the service rules/standing orders/settlements or letter of appointment. Failing to do so means you cannot unilaterally retire an employee after a particular age that you consider as the age of superannuation. The employee is entitled to continue in the service until they become medically unfit. If you retire them on your own, it amounts to retrenchment if they were a workman, as Verghese Mathews said, or an unlawful termination if they are in a managerial cadre. Therefore, ascertain this position first before initiating any action.

B. Saikumar
HR & Labour Law Advisor
Mumbai

Dear Saikumar,

In the present case, the employee concerned is a family friend of the owner of the company. It is very unlikely that he will raise any objection. Moreover, he has not discontinued working; he is still working as a consultant. I hardly sense any problem by anybody in the given circumstances.

Yes, for sure, Lakshmi should implement and convey the age of superannuation to all the employees as soon as possible to avoid any such situation in the future.

Dear Lakshmi,

Please inform the members whether you have given him all the retirement benefits or not.

Dear KamalKants,

My reply is strictly from the point of view of the employer-employee relationship. However, Laxmi Subramanian pointed out that the employee concerned is refusing to accept the superannuation letter. No means are better if things can be settled amicably.

Thanks,
B. Saikumar
HR & Labour Law Advisor
Mumbai

Dear Lakshmi,

First of all, please learn the scope, definition, and applicability of terms like termination and suspension under the ambit of statutory laws applicable in your area.

Secondly, termination is a negative and adverse event in anyone's career, which is seldom used even in large and reputed industries. This should be applied with a lot of process and procedures that come only with years of experience and instances accumulated over time. Are you armed with this?

What is your authority in dealing with situations like this? Is it assumed or clearly written down in your functions and responsibilities? There are many senior and competent managers, workers, and staff well past 65 years working across various industries with better contributions, for example, ex-defense employees.

You need to have the top management's active role and contribution when dealing with senior employees based on age, authority, and competency. Otherwise, you will land in trouble and put the company in difficulties that are hard to resolve later. Take a smart, cautious, and, more importantly, sensible step. At best, consider the contribution, physical and mental strength, and how they overshadow their age; you need not worry at all. What support do you get from management in this case?

V. Rangarajan (Chennai)

Dear Mr. Rangarajan,

Yes, you are right. There are many old employees in the organization who are contributing well towards organizational growth. However, from the HR perspective, we need to adhere to certain statutory bindings that are applicable to the industry. We are shortly going in for various standards such as ISO, SA 8000. These standards require good documentation and practicality. Management support is with me, and it is not a unilateral decision. He has now accepted the superannuation notice, submitted a fresh application for appointment as a consultant, and we have issued him a letter as a consultant. Therefore, the problem is now solved.

Regards,
Lakshmi
GM HR

Hello Lakshmi,

While the present situation has been successfully handled, I suggest focusing on streamlining the HR policies, as Kamal Kant Tyagi mentioned, to avoid the recurrence of such or similar situations in the future. For now, this has been a case of superannuation. There could be other aspects where the HR policies may be lacking clarity.

Regards,
TS

Dear Members,

Declaring or enrolling an employee as a consultant does not mean statutory deductions will stop. It has been observed by the Honorable courts that in the past, many employers were and are using this ploy of enrolling employees as consultants to avoid statutory deductions. Therefore, there are directions on this issue by statutory bodies and the court. It is clearly mentioned by them that any full-time employee, regardless of being labeled as a consultant or under contract, is liable and eligible for statutory deductions.

Sunil Kumar