Employee Without Appointment Letter: Is He Entitled to Paid Leave or Not?

One of our employees has completed 6 months, but the management has not given him an appointment letter so far due to poor performance in sales. Now, he has taken 3 days leave. Is he entitled to the leave policy, or is it considered a loss of pay? Please update.

Hi, when he has not received any written document, how is it possible for the entitlement of leaves? Yes, it's a loss of pay because he has not received any appointment letter, and his confirmation is still pending from management.

Employee Tenure and Appointment Letter

If the employee has completed 6 months of his/her tenure with the company and the appointment letter has not been issued, it is a fault of the management. Not asking for the appointment letter is also the fault of the employee.

Leave Entitlement

Regarding the leave of 3 days, please refer to your Leave Policy. Normally, CL/SL is entitled for probationers as well. The employee's eligibility for EL/PL is 240 days of his tenure with the company.

Performance and Probation

Last but not least, if the employee is not performing well, please counsel them and give them a chance to prove themselves. You can even extend the probation period for another 6 months, stating that if the employee does not perform well, he/she will be terminated.

It's interesting to note that you are expecting good performance from the employee without even providing him the basics of the appointment letter. Do you seriously think that he is doing his work properly without being worried about the status of his employment? And now you are concerned about him taking 3 days leave?

Even if we don't look at that, please consider this scenario: You have no legal hold on him, so what if he commits a fraud with a client in the name of the company? How will you initiate legal proceedings against him without the appointment letter? What assurance can you provide the client that action will be taken on him in the absence of such legal hold? These things are too dangerous for the organization to ignore.

I would suggest that you issue the appointment letter to him immediately. Then you can enforce any company policy on him.

Regards,

Appointment Order Requirement

To my knowledge, except under the Delhi Shops and Commercial Establishment Act, an appointment order is not mandatory. My advice is that all employers should provide it, and every selected candidate should demand it.

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

As per your details, it is clear that you are from Bangalore, which is in Karnataka State. The Shops and Establishment Act of Karnataka State is totally applicable to you. I have attached herewith the screenshot of Section 6A of the Karnataka Shops and Establishment Act, which makes it mandatory to provide a written appointment letter to an employee within 30 days. So, this is the first thing you are doing illegally.

Leave Entitlement Under the Karnataka Shops and Establishment Act

Another issue is Leave: Under Section 15(1) of the same act, every employee is entitled to leave of 1 day after every 20 days. This is over and above the weekly off, and for the purpose of counting 20 days, weekly offs and public holidays shall be counted. So, as per the act, giving at least 1.5 leave per month is mandatory, which you are not providing to your employee, which is illegal.

Under Section 15(2), an employee is entitled to 12 sick leaves, which again you are not providing to your employee, which is illegal.

Moreover, they are entitled to accumulate the leaves. My suggestion to you would be to mitigate this situation by issuing him an appointment letter backdated and providing him with the benefits of leaves as per the law above. However, I cannot advise on what to do regarding PF and ESI. Although I am unsure whether you are covered under the act or not. If covered, it could pose a problem for you if that employee approaches the authorities.

HR Responsibility and Compliance

As an HR person, it is your duty not to encourage these types of activities in your organization. Please apprise the management about the gravity of the situation and hope for the best.

Feel free to revert in case further clarification is required.

Regards.