Employee Absent for 20+ Days Without Notice: Can We Terminate Without Settlement?

If an employee has been absent for more than 20 days without any intimation and still has not returned to work, what can be done? Can we terminate the employee without providing any settlement based on the grounds of business loss?

Dear Amit, this is a case of abandonment of duty. However, before termination, send at least two notices to his last known address for his unauthorized absence. If no reply is received, or if the reply is not satisfactory, or if the employee does not join his duties, then it is better to order a domestic enquiry. If the employee does not turn up for the domestic enquiry also, then you may take an ex parte decision to terminate him.

Few companies terminate with just a notice. However, it is a legally incorrect procedure. How far to follow the procedure is up to your company.

Thanks,

Dinesh Divekar

1. I agree with Mr. Dinesh Divekar's viewpoint; he has advised correctly.
2. Follow his advice.
3. Do not terminate without following the proper process; otherwise, it will boomerang if the employee decides to fight back, as the courts have taken views favorable to the employees in such matters.

Along with the points shared by Mr. Dinesh Divekar, please refer to your company's approved standing orders and check what provisions are made there. If there is any variance between the suggestions and the standing orders, follow the latter. Intimation is generally required thrice at various intervals; keep at least a week's time difference and send notices through registered post only. Retain a copy of the acknowledgment of the posted copy in personal records.

Regards, Harpreet Walia
[Phone Number Removed For Privacy-Reasons]

Sir, to the best of my knowledge, before termination for absconding, a public notice of absconding in two prominent and widely circulated dailies is generally suggested. Hopefully, this point will be considered and discussed/advised suitably.

Gpagarwal
Lucknow
Ph. 8009458901

Dear Mr. Agarwal,

Publishing in the newspaper is not necessary, in my viewpoint. Sending a minimum of two registered A/D letters is essential to the last updated address in the company records. If the letters are received well, that's good. If they are returned undelivered, it is still advisable to commence an ex parte domestic inquiry. However, at each step, it is important to continue sending registered letters to the delinquent employee.

Thank you for sharing this issue. I suggest reviewing the case as follows:

1. What is the legal concern in case you want to terminate the employee immediately?

2. Is there a clause in the employment contract for such a circumstance to help and guide you?

3. What is the nature of your organization? Is this an isolated case, or do you face it frequently?

4. A YES or NO to some of the above questions would help you review the recruitment and selection process of your company. This will ultimately assist you in understanding how to solve this problem efficiently. Otherwise, the senior has advised you correctly.

Thank you.

Many employers have found themselves in difficult situations where the employee fails to report for duty, and the employer does not know the employee's whereabouts or the reason for the absence.

Steps Before Terminating Employment

It may seem easy for the employer to deem the contract of employment terminated and refrain from taking any further steps. However, even when an employee has been absent from work, the law still requires that an employer takes certain steps before deciding that the employment relationship has been terminated.

The Audi Alteram Partem Rule

The audi alteram partem rule is the core of our labor principles. In a situation where the employee's whereabouts are unknown, it is hard to afford them an opportunity to be heard before "dismissing" them.

Attempts to Contact the Employee

Where the employee has been absent from work for three or more consecutive days and the employer has no idea where they are, the employer must first make all attempts to contact the employee and summon them to report for duty. This can be done by sending a telegram to their last known address and/or a message on their cell phone. Should the employee still not report for duty or contact their employer, then the employer should proceed with the next step.

Termination Notification

The employer may then send the employee a letter stating that the employee's employment has been terminated due to deserting their duties. However, it is important to mention to the employee that they have the right to make known their reasons for absence and appeal against the letter. For all intents and purposes, it is not the employer terminating the employee's services but a case of advising the employee that they have terminated their own service by failing to report for duty.

Referral to CCMA or Bargaining Council

If the employee at a later stage decides to refer the matter to the CCMA or the Bargaining Council, the employer will be able to prove to the commissioner that the necessary steps were taken to try and locate the employee's whereabouts. However, nothing resulted from the steps taken. The employee themselves will have to provide an exceptionally good explanation as to why they failed to inform the employer of their whereabouts, and in many instances, they fail to do this.

Distinguishing Absence from Desertion

It is imperative to distinguish between absence without official leave and desertion. It has been held by the CCMA that in cases of desertion, also known as "termination of employment by absconding," an intention not to return to work must be established.

The conclusion here is that by following all the necessary steps before accepting that the employee has repudiated their contract of employment by deserting their duties, the employer will be in a better position to argue their case before the commissioner should the employee refer the matter at a later stage.

The original question is whether an employer can terminate the services of an employee who is continuously absent even after the former's reminder to rejoin forthwith. The immediate answer given by Mr. Dinesh is appropriate, as the case is one of abandonment of service by unauthorized absence.

Dear Mr. Amit Ashtha,

Unauthorized Absence from Duty

Your Query: "If an employee has been absent for more than 20 days without any intimation and is still not joining - what can be done? Can we terminate the employee without giving any settlement on the ground of business loss?" dated 2nd June 2017.

Position: "Unauthorized Absence from Duty, for whatever period/duration/number of days, constitutes an act of Misconduct for which necessary Disciplinary Action can be initiated for the sake of maintaining and promoting Workplace Discipline as per the Provisions of the Model Standing Orders/Service Rules framed under the applicable Shops & Establishment Acts, as the case may be.

Further, since taking appropriate Disciplinary Action for the said act of Misconduct by the Employer is Non-Negotiable and the sole Privilege/Prerogative of the Employer, the following Action-Steps need to be taken immediately:

i) A Charge-sheet or an Explanation Letter should be framed clearly and categorically mentioning the Date from which the said Worker/Employee started absconding from his/her duty without any information or permission after thoroughly checking the Attendance Record and giving a reasonable opportunity to him/her to explain the misconduct (be guided by the relevant provision in your SO or Service Rules regarding the Number of Days; generally, the reasonable opportunity is the total time of delivering the Registered Envelopes plus Two/Three additional days);

ii) The Charge-sheet/Explanation Letter should be issued to him/her by Registered Post with his/her Home (Permanent) as well as the Local (Present) Postal Addresses correctly mentioned on the Envelopes; and

iii) In case these Registered Envelopes are returned undelivered by the Postal Authorities with the Remarks either "Addressee Refused to receive" or "Addressee Not Found at the Address," preserve these Two Envelopes as a Record for future reference purposes;

iv) An Officer Order should be issued under the signature of the Authorized/Punishing Authority informing the Charge-sheeted Employee about the Employer's Decision to hold an Inquiry into the said Act of Misconduct; Appointing an Inquiry Officer or Inquiry Committee to inquire into the allegation/act of misconduct with a view to ascertain the Facts of the Case and submit an Inquiry Report with Findings after following the Principles of Natural Justice as well as the Inquiry Procedures laid down for such Departmental/Internal Inquiry; and also nominating an Officer/Executive to present the related Facts/Data before the Inquiry Officer as the Management Representative;

v) The Inquiry Officer needs to issue an Inquiry Notice to the said absconding Employee intimating him/her of the Date, Time, and Place of the Inquiry as scheduled and advising him/her to attend the Inquiry Proceedings to defend the alleged Misconduct;

vi) In case the said absconding Employee attends the Inquiry to defend the alleged action/misconduct, full Inquiry Proceedings as prescribed should be followed;

vii) However, in case he/she absents from attending the scheduled Inquiry Proceedings on the Date, time, and Place informed to him/her, the Inquiry Officer needs to give him/her "yet another opportunity" to appear before the Inquiry Officer to defend the alleged action/misconduct by adjourning the Inquiry to another Date and informing him/her about the same adjournment by Registered Post;

viii) On the next Date, the Inquiry Officer may decide to proceed with ex-parte Inquiry Proceedings in case the charge-sheeted Employee does not show up to take part in the Inquiry and after examining the Materials-on-Record presented by the Management Representative, conclude the Inquiry;

ix) Once the Inquiry Officer submits the Inquiry Report with Findings, the Punishing Authority can exercise his/her discretion to award the Punishment for the act of Misconduct keeping in mind the Provisions of the applicable SO/SR relating to the quantum of Punishment (which needs to be proportionate);

x) The Punishing Authority needs to communicate the Punishment for the said act of Misconduct to the absconding Employee and give an opportunity to submit his/her "Representation against the proposed Punishment" if any; and

xi) The Punishing Authority may thereafter issue a Punishment Letter by Registered Post, as stated before, after due and diligent consideration of his/her Representation received/not received, as the case may be.

The Employer is at this stage free to decide further action to manage the Work.

May be, you decide to seek further clarification in the matter, and Team Kritarth is always available for the same.

Regards, [Email Removed For Privacy Reasons]

4th June 2017