Asking employees to join their duties - If employee cannot come, employer can take any action on them?

Hi All,

Good Afternoon! If a manufacturing company is situated in XYZ state and the employees are from another state, due to the government's restriction on inter-state transportation since lockdown-1, they have been unable to commute to the factory. The company has been providing full salary during this period. Now, we are requesting them to return to work, and if they fail to do so, the company may withhold their salary.

My queries are:

1. Can any legal action be taken if the company does not provide salary?
2. Can the employer take any action against employees who are unable to return?

Please advise.

Hi Bharath,

Regarding Question 2: Nobody is going to stop you from asking your employees on the roll to report for duty immediately. You are within your rights to do so. It's not the responsibility of the employer to provide logistics support for an employee to commute between residence and workplace. Maybe if your terms of appointment provide for such a perk/arrangement to take care of transportation, such as pick up and drop by your vehicle, then you are free to review this facility and revert to 'make your arrangement' to commute provided you issue proper notice and amend the terms. Even consider replacing 'pickup-drop' by conveyance allowance also instead.

Inter-state travels on own vehicles are taking place between some states whenever the concerned carriers authentic ePasses and/or for those carrying a Test certificate. Probably you may work on that to assist the concerned, apply and get them to come to the worst. All said and done, in the prevailing alarming situation, it's also not advisable for those indulging or preferring in commuting inter-state to continue and insist like the old pattern in these days also. They should be made to realize the gravity of current problems.

I suggest you may take appropriate action so that they shall report to duty instead of taking shelter under Covid restrictions. After all, it's not necessary to be the terms of appointment that one should stay outside the state/place of posting. Let them make a decision whether the job or the comfort of staying at home with 'no work but pay.' It has no legal backing also.

Regarding Question 1: Initially during the lockdown, most of the employers did disburse salary though 'no work.' But due to practical difficulties, the majority of them discontinued this measure as they have no means to pay or with no or meager revenues. Moreover, all the governments have relaxed lockdown either fully or partially enabling employers to resume operations, maybe with reduced workforce. As such, you have your defense under 'no work-no pay.' Even the Supreme Court, while hearing a batch of petitions of employers, upheld employers' position in this regard, though the final verdict is still awaited.

Hi Bharath,

No legal action will be initiated against you for not paying salary to your employees who do not report for work and thereby do not earn wages (no work, no pay principle). Even the Supreme Court has upheld this position.

Notwithstanding legality, you need to think of some practical solutions to the problem. Considering the lockdown and the inability of workmen to attend (involving inter-state transportation), you may talk to the union of workers and decide on a provisional arrangement regarding how to operate your plant in terms of deployment of strength, shift modification, or some kind of monetary relief for those workmen who are genuinely held up and scared of infection during commuting, among a host of other factors. This provisional arrangement may last for two or three months, and if you wish, you can sign a Memorandum of Understanding with the unions. This could go a long way in promoting industrial harmony.

Initiating disciplinary action against those who do not report for work despite your notification during this present situation does not bode well and is detrimental to industrial peace.

Please consider my suggestion and create a WIN-WIN situation for both.

Panchsen
P. Senthilkumar
Former Corporate Head - Industrial Relations - MRF Ltd
Email: senprithvib6@gmail.com
IR & Labour Law Consultant
9884009193