Ex-Employee's Legal Notice Over Unpaid Salary: How Should We Respond?

Dear Seniors, My company has received a legal notice from one of our ex-employees who was terminated during her probation period due to her ill behavior towards her job. I would like to take some of your time and explain the matter briefly.

Company Background

We are a Pvt. Ltd. company registered under the Shops & Establishments Act in Bangalore. Ms. XYZ joined us at our Delhi branch on 11th June 2013 (on a 3-month probation) and was given some tasks to perform. All of a sudden, she went missing from the office without informing anyone from 8th July. I am the only HR in this company, and as I was on annual leave, I only found out about the matter upon my return.

Incident Details

When I resumed duty and found her absenteeism, she claimed she had a medical problem requiring an operation. I asked her to apologize for her actions (considering a female problem) and provide original bills and documents to support her sickness (such as a discharge summary). She failed to provide convincing proof (the documents she provided were just a letter from a doctor, which could be produced by anyone). She apologized and requested an extension of her leave. I informed her about the pay cut as she was on probation. She kept delaying her return to work and finally came back on 8th Aug 2013 without proper proof of her absenteeism. When asked for a valid explanation, she resigned, stating she did not want to work.

Current Situation

Due to her behavior, we asked her to leave the same day and provide a handover of the work done for the past 2 months. We have now received a legal notice from her requesting salary for July (when she did not come to work at all) and for the 8 days of August (when she only worked on 8th Aug).

I would appreciate your valuable input on the matter mentioned above.

The reason for a probation period is for you to "try" the person and vice versa; termination of employment is allowed without repercussion for this very reason. However, please ensure that your original offer letter mentioned the probation period.

You should respond to the legal notice, setting out your reasons as you have described them. Your response should include copies of documentation and the written record of the conversations you had with the employee.

If you do have a written record, then please review your procedures to ensure that ALL conversations are written down, and the employee is given a chance to read the record and agree that it is a true record by signing it off. If the employee disagrees with anything that has been written down, then the disagreement must also be recorded, and the employee be allowed to record their version (which you may disagree with and record that also).

In light of your current situation, I am sure you can see the value of keeping records.

I hope the above helps.

Regards,
Harsh

Hi Smriti! To sum up, what I understood is that an employee went on long leave without informing anyone. Upon your return from leave, requests were made to extend her leave; she was informed of a pay cut, then suddenly resigned, and you were subsequently served with a legal notice.

Now, what needs to be done? If she has served you a notice, simply respond to it with reasons. Let her return with another notice or reply to your response to that notice. The action taken against her appears to be on disciplinary grounds, which should be legally valid. As she was on probation, please review the appointment letter as it likely addresses this situation.

I would request you to carefully review the appointment letter first before any further action can be determined. As mentioned earlier, there is no need to worry about the legal notice served to you; just respond to it with reasons.

Please do not get disturbed by the notice you have received. The notice, as put by you, is for claiming the salary of July and August, which according to you is not payable. Just reply stating the facts of the case, mentioning her unauthorized absence from work and how work was disturbed as a result. Clearly reject her claim for the salary and put the matter behind.

Regards,
Adv. K. H. Kulkarni.

Carefully examine your offer of employment to the employee and ensure that you have mentioned the probation period and termination of employment during the probation period. If you have mentioned that her services are terminable without assigning any reason and without any notice period, then in my opinion, you are on strong ground. However, in this case, she has chosen to resign, but whether she sought a relieving immediately or at a prospective date is not clear. If she has sought relieving at a prospective date and you have unilaterally decided to relieve her with immediate effect, it could be a cause for concern.

Generally, when employees submit fake evidence, it is advisable to write to them seeking proper evidence. Does your company have a standing order applicable? If so, you may have some clauses applicable for termination of employment.

If she has submitted a letter from a doctor, you could have written to the doctor seeking confirmation of her sickness, stating that it is required as documentary evidence by your company relating to her employment. This is because when doctors are confronted and if they have given a false certificate, they will not respond. But if it was genuine, they will respond stating that it was genuine sickness.

If she has undergone surgery as stated by her and if she had mentioned the hospital, you can verify with the hospital to ascertain if such a patient was admitted/treated on that particular day.

Consult your legal counsel on this matter before responding as she has served a legal notice.

Regards,
M.V. Kannan

There are many lawyers who collect around Rs. 200-300 from gullible individuals without assessing the merits and proceed to send legal notices on behalf of their clients. Do not be alarmed. Maintain your records and respond by requesting compensation for any damages incurred.

Regards,
Pon

Dear Seniors,

Thank you all for your valuable and useful suggestions. As inquired by a few seniors, I would like to inform you that our appointment letter clearly mentions the Probation Period (i.e., 3 Months) and states that the confirmation of any employee completely depends on their performance and the management's decision. Additionally, it states that the company reserves the right to terminate an employee's employment immediately, at any time, without notice or compensation in lieu thereof if found guilty of gross insubordination, insolence, neglect of duty, and dishonesty.

It also mentions that "Loss of confidence by the management shall be considered, among other things, a valid ground to terminate your services without assigning any reason." Absence from duty for 7 consecutive days without obtaining prior permission shall entitle the Management to treat the absence as abandonment resulting in a loss of service.

Furthermore, I would like to inform you that the former employee has signed the appropriate letter copy, and I have evidence (emails) to prove that she was guilty and was warned by the management.

Regards,
Smriti

With the new facts, you seem to be adequately covered. Simply reply to the legal notice received by you, denying eligibility for any salary. Make sure you don't include anything related to termination clauses, as stated above, which will be a good defense for you at a later stage.

Keep all the favorable points with yourself and reply to that letter casually with the reason for not paying the dues. Instead, ask for compensation for the loss to the company. Needless to say, do approach a good lawyer to draft that response for you.