How to Handle an Employee on Probation Who Refuses to Resign Due to Medical Leave?

Dear Seniors, I need help on a grave matter. One of the employees who joined us on 1st July '17 worked for 14 days and went on leave on medical grounds from 17th August '17 due to a borderline slipped disc. According to her doctor, she had to be on bed rest from 20th July '17 until 9th August '17, as per her medical certificate. However, management decided to relieve her from duties, foreseeing that even if she joins (pursuing a career in a tour company) during the season, it will be difficult for her to cope. Meanwhile, we looked at her backup too. In between, we kept on giving her hints to leave, but she is not ready to resign.

Our legal department sent her a letter of discharge citing the probation clause. Still, she is not ready to listen and resign, asking on what grounds she should do so. Even our Director has decided to meet her in person in the coming week.

Please advise on what needs to be done in such a case.

Dear Sarita, you have written that the absence of a newly joined employee due to medical reasons is "grave." However, I do not find any seriousness in this situation. If the employee has worked for just 14 days and then could not attend duties due to medical reasons, you should advise her to submit a resignation on medical grounds. You can consider invoking the clause mentioned in the appointment letter regarding the termination of employment during probation, but instead of doing so, suggest that she submits a letter of resignation.

Has her salary been disbursed for the month of July 2017? If not, then hold the salary until further notice. Instruct her to complete the normal separation procedure when she reports for duty. Upon completion of the separation process, release her dues with the monthly salary of the subsequent month as applicable.

Thanks,
Dinesh Divekar

Thanks, Mr. Divekar for your reply.

The problem is she is not ready to resign, mentioning that there is nowhere mentioned on the appointment letter that one has to resign on medical grounds. Salary we have not released yet. Even on our probation clause, we have just mentioned that it is for 6 months and nowhere is it mentioned that an employee has to leave on one day's notice.

Dear Sarita,

If the appointment letter does not mention provisions for separation, then you need to revise it. If the employee argues that "nowhere is it mentioned in the appointment letter that one has to resign on medical grounds," her argument is unreasonable. Not everything can be included in the appointment letter. It is her duty to render the desired level of performance.

Anyway, to handle a situation like this, you may order a domestic inquiry and instruct her to attend on a specific date. Let her unauthorized absence be proved. Based on the merits of the inquiry report, you can take disciplinary action. If she responds stating that she is unable to attend the domestic inquiry on medical grounds, then hold the inquiry in abeyance.

If you do not wish to conduct the domestic inquiry, then let her remain on the company's rolls. When she returns, you may conduct the inquiry. Based on the inquiry report, you can terminate her services.

Thanks,
Dinesh Divekar

Dear Sarita,

Greetings for the day.

Since you mentioned that the employee is a probationer, please check what the probation period is. If it falls within the same, you need not ask them to resign.

Please review the terms and conditions of the appointment, specifically the notice period. Whether it is a notice period of 6 months or two months, the employee can discontinue their service with notice pay and other entitlements falling under this provision.

Thanks & Regards,

Sumit Kumar Saxena