Employee Salary Dispute Over Medical Leave: How Should We Handle This Legal Threat?

Employee Salary Dispute Due to Medical Leave

We had an employee who worked with us from 19th March 2013 until 30th July 2013. The issue is that she was suffering from some back trouble. She informed us about her illness in mid-July 2013, stating that she could stretch until August 2013 and would be leaving the organization by the end of August 2013. When asked for the medical reports, she made an excuse that she had submitted them for mediclaim purposes. She did not place her resignation, and she left our organization on 30th July 2013 without serving any notice period or informing us in advance.

Now she is asking for her salary for the month of July 2013. She claims that she is medically unfit and cannot serve any notice period. She sent her medical reports after leaving the organization, specifically on 14th August 2013. This, according to me, was a deliberate move as salaries are released between the 10th to 15th of every month.

Since she has not served any notice period or informed us in advance in any manner, the company believes that we are not liable to pay her salary for the month of July 2013. When we informed her about this, she stated that she would sue the company for this kind of action.

She quoted as follows:

"Hi, well, this was a sudden ill health attack, and my doctor clearly said I am not to sit. In this case, I need to file a complaint against the company because medical conditions are sudden to appear, and you are clearly doing an exploitation here. Your call now. In a week, either I get the salary for the work I did, or else I sue the company for my ill condition plus not giving my salary. Thanks."

Kindly suggest what should be done in this case.

As mentioned in my earlier posting, it is purely the management's decision whether to pay or not. Before anything else, ensure that the terms of the appointment letter state to serve the notice period and cannot be waived off. An employee cannot sue the company. If on personal or humanitarian grounds, the management wants to address her issue, please go ahead. Otherwise, at most, she may incur a small cost by sending a notice from any advocate. Nothing more will happen beyond this.

Sensitive Nature of Notice Period Issues

I believe it is important to discuss that matters related to the notice period, leaving, or absconding are very sensitive in nature, exposing the employee's career. Employees are encouraged to express their concerns through representation and resolve issues through dialogue rather than opting for legal actions. By doing so, employees should remember that the organization will not lose anything (provided the documents are clear); the employee will lose time and energy, and third parties such as consultants or advocates may profit.

This message is shared in general interest and is not specific to any particular case or intended to disrespect anyone's feelings.

Regards,
JSR

I would like to clarify one more thing. This employee has left on "medically unfit" grounds. In such a case, the company is not liable to pay salary to her. Am I right?

Regards,

The word she has used is very harsh and does not deserve any sympathy. If she files a case against the company for non-payment of salary, you can defend by saying that she was on leave without proper intimation and has absconded without proper handing over, and that was why the salary was put on hold. But to establish this, you should have documents in support of her unauthorized leave and letters asking her to join or a show-cause notice asking her to explain why action should not be taken for her unauthorized leave, etc.

Moreover, when you declare that you pay salary on different dates which may vary from the 10th to the 15th of a month, you would be violating the laws in this regard, i.e., the Payment of Wages Act, which states that the salary should be paid within 7 days of the salary month. The only exception is that establishments employing 1000 or more employees are allowed to pay salary on the 10th. Therefore, if your Personnel Department is not acting according to applicable laws, then settle the matter and get rid of complications. After all, she is asking for the wages of her physically present days and nothing else. Think and act.

Regards,
Madhu.T.K

One point you have mentioned in your posting is that in mid-July she informed you about her inability and left the service on 30.07.13. This clearly shows that she has served you notice for 15 days, though verbally, but the information was with you. In this way, she is also entitled to fifteen days' salary after deducting 15 days' salary of the short notice period salary from the full month's salary.

Moreover, when she is medically not fit, what work could you have gotten done from her? Hence, I feel your query is just to obtain forum support to complete the formalities and papers concerning her. An HR person should also consider other peculiar aspects of the case and then decide and recommend.

Please don't take my frankness otherwise.

Thanks,
V K Gupta

I got your point. But the thing is that we have shared her medical reports with a doctor. According to the doctor, her medical reports are quite normal. She could have taken at max a week's rest and could have resumed her duties. She was suffering from some minor back trouble according to the medical reports.

The company was okay with providing her leaves for 2 or 3 weeks, but she didn't opt for that and straightway stopped coming to the office. She didn't submit her medical reports when she was asked to. Instead, she submitted them after 15 days of leaving the job, and that too when she realized that the company has not released her salary.

Please comment on this.

I understand your point and position. I also understand that she was posing an illness. But when she is not ready to work, how can you force her to work? HR is not a policeman to enforce when an employee is not willing and ready to work. In these circumstances, you can take action against the employee. If there is any problem in the working of the company without her, then initiate disciplinary proceedings against her for unauthorized absence as per the policy/SO of the company before she initiates any action against the company.

If not, then call her and get your documents completed and pay her salary as suggested above to sort out the problem and should get rid of such employees.

Regards

I understand from the above discussions that management is not willing to pay the salary for the days worked on some pretext or another. One thing we should consider is the conditions under which she is leaving without serving the notice period. Is there a genuine reason for it, or does she simply want to avoid working during the notice period? Please remember that our former employees are our brand ambassadors who can convey both the positives and negatives of the company. Please make a conscientious decision.

It is very difficult to interpret the contents of the medical report in the way we may deem necessary. It is not feasible to prove her alleged ailment does not warrant availing leave or quitting. It's her decision. Let us stick to the points of what admin should highlight/answer these:

1. Whether she has really applied for the grant of leave, and if so, was it allowed or not.
2. Was she eligible for the applied leave, if any? If not, whether the leave was denied and the same was conveyed to her.
3. If no leave was granted, what action was taken regarding unauthorized leave/absenteeism?
4. Without a proper resignation letter, how has the matter been dealt with by your admin?
5. Has any domestic inquiry been initiated? If not, what is blocking it?
6. Obviously, she is on probation, and normally no leave could have accrued. Why was appropriate action not taken?
7. Why are you panicking about this suing matter? Are you afraid of any other serious issues that might crop up if this is not settled fast?

Thank you.

Had your company been on the right side of the law regarding salary dates and essential documentation, I would have suggested countersuing her and making her pay for the lost opportunity. However, since you are on a sticky wicket yourself, all you can do is talk it out with her and settle it before it goes to court.

I have dealt with several such cases. Most of the time, employees get another job offer, and because the next company pressures them to join early, they make up such excuses.

If you have got the medical documents verified by your doctor and he/she says that the employee's condition does not require her to quit her job, then stick to it. Treat her resignation as "resignation on personal grounds" (because medical grounds have not been proved). She should have either served notice or paid in lieu of notice and taken a clean relieving.

Also, she informed you verbally about her resignation; you have to consider that date as the start date of her notice period. Complete her FnF calculation and check if any amount is payable/recoverable. If payable, then make the payment promptly; if for recovery, send her a letter for recovery.

Don't worry about the employee suing the company; at most, you may get a notice from her advocate stating that you have caused grievous mental and physical harassment, etc. You can ask your advocate to reply to that letter and refute each and every allegation in a point-wise/paragraph-wise format.

From my experience, a letter/notice from an advocate is not much to worry about. If you get a notice from court, then you would need to engage an experienced lawyer to handle the case, but the possibility of this happening is negligible.

Hope this helps.

Regards,
Ritesh Shah

Dear Anamika,

I understand from your email that the employee may be misusing the leave eligibility. Please refer to the terms of appointment regarding the number of sick leaves with pay provided to employees. Subsequently, you can also take a second opinion on all medical reports submitted by the employee to determine whether so many leaves are genuinely required for such a medical issue. Please also seek initial medical checkup reports where the doctor must have advised her to undergo a detailed medical checkup with a suggested rest period, as well as bills confirming she was admitted to the hospital.

You can also request the medical prescription from the doctor where he/she instructed the said employee to take leave for a long period. Please ensure it was issued on the date when she had gone for the medical checkup, not later.

Please issue an official show cause letter to her for not attending the office for such a long period, for not giving resignation, and for not serving the notice period or payment of notice pay as elaborated in the appointment letter.

Let her proceed with legal action as the onus of proving that she was ill and advised for long medical rest lies on her. I sense a malafide intention from her behavior and activities.

The rest depends on the discretion of your management whether to take a hard step or pay the salary on humanitarian grounds.

Regards,

I appreciate your advice. We have consulted our lawyer for this case, and he is also of the view that the employee is wrong on her part.

Thanks a lot.
Regards

Great. What did your lawyer say about your salary date and the lack of documentation, such as a "Show cause notice for being absent without intimation," and the like...?