Can This Be Considered As Force Majeure??

Respected HR Fraternity,

I am working as an HR in an IT firm and have a query concerning Force majeure. One of my colleagues was unwell during the last week of July and had availed sick leave for the same. He returned to the office on July 31st but was still unwell. Starting from August 1st, he did not show up for work and informed the LM about his health situation. On August 3rd, we received a resignation email from him stating his inability to fulfill the one-month notice period as required by the contract due to his illness. He requested that July 31st be considered his last working day in the company. He explained that the fever was due to a plate rupture in his thigh and that he urgently needs surgery, followed by 3-6 months of bed rest.

The employee expressed willingness to pay one month's salary in lieu of the notice period, as specified in his appointment letter, due to his health condition. However, we had already paid the salary for July on the 31st to all employees, including him, and since August 1st, he has not been attending work, making it challenging for us to recoup the salary.

My query is, can we request a medical letter from the employee, consider this situation as Force majeure, and waive the notice pay? If so, are there any other details we should request from the employee in addition to the medical letter? Alternatively, should we ask the employee to reimburse the company with one month or half a month's salary in lieu of the notice period to prevent setting a precedent for other employees?

I seek your advice on the best course of action. Looking forward to your valuable guidance.

Thanks, Mia

Dear Mia,

First, let me provide comments about the term "force majeure" that you have used in the heading of the post. The dictionary meaning of force majeure is "a natural and unavoidable catastrophe that interrupts the expected course of events." This phrase is commonly used in contract agreements. Sometimes, due to acts of God like earthquakes, floods, typhoons, etc., a contractor may be unable to execute their work. The contractor may request an extension of the contract time limit due to force majeure. Therefore, the appropriateness of using this phrase in an employer-employee relationship remains to be seen.

You have two options now. One option is to keep the ailing employee on the payroll. Allow them to take Leave Without Pay (LWP) and let them resume their duties once they have fully recovered.

The second option is to accept the employee's resignation. If the salary has already been paid, you can request the bank to reverse the credited salary. If the employee has not withdrawn their salary, send a letter to the bank using your company's letterhead. Explain the reasons for taking this action. Generally, bankers comply with employers' requests.

Resignation can be accepted on medical grounds with a certificate from a certified medical practitioner. However, send your security officer to the hospital to verify the authenticity of the medical certificate.

On medical grounds, you may "condone" or "waive" the notice period.

Thanks,

Dinesh Divekar

Dear Preethi,

As the employee is ready to pay his notice period now, it is the complete choice of the employer to consider this situation from a humane perspective or simply as a standard resignation case. Waiving off his notice period due to his medical condition would be highly commendable, as it would demonstrate respect towards the employer and likely boost morale among other employees. However, it is essential to request comprehensive medical documentation from him to ensure the legitimacy of his situation.

Thank you.

Hi, Mr. Manoj Kamble has correctly stated. This is an opportunity for you to gain other employees' loyalty and confidence by setting an example of waiving off the notice period on grounds of a medical ailment as well as humanity. Yes, the verification of medical authenticity is to be done so that an assurance of the case is ensured.

If you are using the term "force majeure" in an employment contract, I would suggest investigating the case and, based on the reality of the situation, trying to retain the affected employee. You can ask him to seek medical treatment and return to duty afterward. If you have any health policies such as GPA and GMC, you can assist him and make claims through the policy. As HR practitioners, we should support him in his treatment and preserve his employment.

Dear Mia,

You can ask the employee to pay back the amount in lieu of notice, and in this case, the employee has already stated his intention to pay. Alternatively, your company can adjust the amount from the full and final payments likely to be paid to the employee. Do not issue any release order until completion of your procedure; communicate this to the employee.

First, let me comment on the use of the term "force majeure" in the heading of the post. The dictionary definition of force majeure is a natural and unavoidable catastrophe that interrupts the expected course of events. This phrase is commonly used in contract agreements when unforeseen events like earthquakes, floods, or typhoons prevent the fulfillment of contractual obligations. Therefore, the appropriateness of using this phrase in an employer-employee relationship is debatable.

You have two options to consider. One is to keep the ailing employee on the payroll and allow them to take Leave Without Pay (LWP) until they recover fully. The second option is to accept the employee's resignation. If the salary has already been paid, you may request the bank to reverse the credited amount. If the salary has not been withdrawn, send a letter to the bank on your company's letterhead explaining the reason for the reversal request. Banks generally accommodate such requests from employers.

Resignation on medical grounds can be accepted with a certificate from a certified medical practitioner. It is advisable to send your security officer to the hospital to verify the authenticity of the medical certificate. On medical grounds, you may waive the notice period.

Thank you,
Dinesh Divekar
7th August 2017
From India, Bangalore

Dear Preethi,

As the employee is willing to pay his notice period, it is entirely at the employer's discretion to consider this case on humanitarian grounds or as a straightforward resignation. Waiving the notice period due to the employee's medical condition can enhance respect for the employer among other employees. Ensure to request complete medical documentation from the employee to verify the genuineness of the case.

7th August 2017
Manoj Kamble
Senior HR Executive

Hi,

Mr. Manoj Kamble has provided a correct assessment. This presents an opportunity to earn greater loyalty and confidence from other employees by setting an example of waiving the notice period on grounds of medical ailment and humanity. Verification of the medical authenticity is crucial to ensure the validity of the case.

8th August 2017
From India, New Delhi
Regards,
Harpreet Walia

This is really good to see that all the respected members have such positive and helpful replies. This is the reason why this site is so helpful in understanding how HR issues are resolved amicably.

As regards to this case, I also suggest that if the case is genuine, then the particular employee should be relieved happily without any conditions. Going one step further, if the employee is a good performer and valuable for the company in the future, the company should step forward to help them recover quickly and rejoin. Additionally, if facilities like medical insurance exist, the employee can be further supported by providing such coverage.

The result of this will be an increase in the company's reputation and goodwill in the market and among employees. A healthy employee-employer relation is the key to branding the company.

Dear colleague,

With the resignation of the employee following his illness, the issue is limited only to whether the notice pay can be waived or recovered from him. Since he is willing to pay, it may be recovered from him. If he is a good performer, he may be allowed to rejoin after he is declared fit by the doctor.

Regards,
Vinayak Nagarkar
HR Consultant

Hi All,

Thank you all for your valuable suggestions. They were very useful for me in making a decision. We have waived the employee's notice pay and have given him the option to rejoin the organization once he recovers.

Thanks, Mia

Dear Mia,

I appreciate your decision.

Regards,
Vinayak Nagarkar
HR Consultant