How Should We Handle a Long-Term Absentee Who Ignores All Contact Attempts?

Dear Fellow Members,

My organization is stuck in a peculiar situation. One permanent worker has been absent since October 2020. Initially, he stated that he had a medical issue and used to contact HR regularly with his health updates and medical reports.

However, over the last 8 months or so, he has stopped contacting HR and also stopped picking up our calls. We have sent him 3 letters by registered post AD asking him to report to work. While all three letters have been received (we have the acknowledgment cards), he has neither responded to any nor reported back to work.

I know we have erred in handling this case, but my question is what can we now do about him? Can he be terminated as an absconder? What more needs to be done by us to have him struck off our rolls?

Please advise.

Regards,
Arun

Please send one more letter by registered post asking him to report for duty by a specified date. Failing to do so will lead to the presumption that the employee has no interest in serving the organization any further, and accordingly, his name shall be struck off the rolls of the company. If you have already informed the employee of this, you can proceed with further action to remove him from your rolls. The employee may also be held liable to pay for the notice period. There have been several cases where the courts have ruled that an employer is not obligated to wait indefinitely for an employee.

Handling a Non-Compliant Employee

If a workman is fully recovered and avoiding his duties, please issue him a charge sheet in accordance with the applicable standing orders and remove him once the charges are proved.

An organization is not a charity to accommodate such irresponsible workmen. Even if his illness continues, we can ask him to resign, and if he is not ready, please remove him based on the continuous illness, which does not amount to retrenchment.

He is no longer with you, and you have to strike off his name from the rolls of the company, ensuring that the due procedure is followed; otherwise, it may bounce back. Even after receiving the charge sheet, if he returns, please don't allow him and suspend him from duty pending an inquiry. Your actions will also send an indirect message to other undisciplined workmen.

Dr. Kamlesh Agrawal

Dear Colleague,

You may start from the current situation of 3 letters sent by following the below steps on this disciplinary case:

1. Send an Official Charge Sheet and mention all the references of the 3 letters already sent, as well as the period of absence, by connecting the Standing Order or Service Rules or mentioning the terms of appointment.

2. Direct him to submit his explanation for the absence of such a long period of time in writing to the management. If he responds by sending a letter, then study it and if it's not factual, reject the explanation with a clear letter. In case there is still no reply, send a notice for Domestic Enquiry after appointing a neutral/internal or external enquiry officer as provided under the Standing order or disciplinary procedures of the company.

3. Communicate the details of the enquiry officer/date/venue of the enquiry, etc., to the last known address.

4. If the employee appears for the enquiry, give him all the opportunities to explain his side in the enquiry, and allow the management to present the case to the enquiry officer. Then, conclude the enquiry.

5. If the employee does not attend the enquiry, then after giving a reasonable opportunity, the enquiry officer will proceed with the Ex-parte Enquiry. Then conclude the enquiry.

6. Based on the enquiry findings, issue a second show-cause notice as to why he should not be terminated from the services.

7. Then, based on his reply, you may terminate the employee from the services. These are the common steps to be followed.

Move for a clear disciplinary process and conclude the matter appropriately.

Presumption of Voluntary Resignation

When a workman is absent for 17 months continuously, the presumption of having voluntarily left the services could arise. The disciplinary process, along with ensuring communication to the employee at various stages, could be time-consuming and avoidable. If there is a provision in the applicable rules to draw this presumption, it could be utilized. I have defended more than a dozen cases of this nature.

To my understanding, the facts suggest that the employee has voluntarily and willfully abandoned his job. As such, he could be terminated or removed from employment without resorting to a charge sheet or disciplinary proceedings.

Employee Status and Termination Procedures

Any presumption about the status of the employee—whether he is left on his own or engaged in certain other organizations—will not be accepted by the law. There may be a verdict to terminate any employee who is absent for a long period.

Importance of Following Proper Procedures

It is essential to follow the PNJ properly, as mentioned by Dr. P. Sivakumar, to avoid any future complications. It will be even better if an advertisement in the local newspaper stating the termination of the employment is published.

S K Bandyopadhyay (WB, Howrah)
CEO-USD HR Solutions
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