Employee on Unscheduled Leave: Can We Terminate Despite Regular Messages About Family Emergency?

Dear All,

We have one situation here. One of our employees has been on unscheduled leave since February 13, 2020. He sends messages every two days stating that his mother is unwell and he is unsure when he will be able to return to the office. However, he does not communicate via phone.

According to our HR Policy, if an employee is absent for three consecutive days without informing, the employment may be terminated immediately. Despite this policy, he sends a message every third day explaining that his mother is still unwell, and he remains uncertain about his return date.

Can we legally terminate this employee? He does not answer any calls from the office. We have attempted to contact him using different numbers, but he disconnects the call once he recognizes our attempts to reach him.

Please advise.

Thanks,
Mansi

Employee Leave Policy and Termination Considerations

It could be a true story that the referred employee has a problem with his mother's sickness. However, your company policy states: "In our HR Policy, it is mentioned that if you are on leave for three consecutive days without informing, the employment will be terminated with immediate effect."

As the employee concerned informed of his leave after every two days, it could be construed that he is availing leave with permission/intimation only and hence, your company cannot terminate his services abruptly. Being an HR person, you can send your assistant to his residence to enquire into the problem. You may get the factual position; at the same time, the employee shall be delighted by this gesture from the company's side.

After getting the factual position of the situation and after analyzing it, you may make a decision on how to proceed further.

Issuing a Charge Sheet/Show Cause Notice

Please issue by Registered Post AD, a Charge Sheet/Show Cause Notice to his home and local postal addresses, informing him/her that unauthorized leave without prior and proper sanction is an act of misconduct for which he/she is liable to disciplinary action. Therefore, he/she should submit, within two or seven working days as stated in your service rules, his/her written explanation/reply as to why necessary disciplinary action should not be initiated against him/her.

Appointing an Inquiry Officer

Thereafter, appoint an Inquiry Officer to hold a domestic/managerial inquiry into the charge leveled against her/him. Upon the conclusion of the inquiry proceedings, which should be held/conducted as per the principles of natural justice, take necessary disciplinary action (proportionate punishment).

Kritarth Team is ready to assist/guide. Kritarth Team of Inquiry Officers. 1.3.2020.

Dear Mr. P. Radhakrishnan Nair,

It may be a true story, but I doubt if a person cannot even spare 5 minutes to call or something. We have been trying to reach him for a long time over the phone, but he does not pick up the calls. He mentioned that he has left Ahmedabad and is now in Rajasthan at his hometown. However, we will send someone to his PG in Ahmedabad. Thank you for the suggestion.

Termination for Unauthorized Leave

Any employee can be terminated for three days of unauthorized leave, as per your HR policy. Are all the employees of your establishment aware of this rule? Have the employees submitted any leave applications before extending their leave in intervals?

You can terminate employees for unauthorized leave in accordance with your HR policy, and you should be prepared to provide evidence that the employee was absent from duty without prior notice. Send a message to the employee stating, "Your service has been terminated due to prolonged absence from duty," and monitor the situation closely.

Any termination order without a show cause notice and enquiry will be held invalid as it is against the principles of natural justice. It is not the company's HR policy that decides employment or termination.