How Can We Handle Employees Planning to Leave Without Serving Notice? Seeking Advice on Notice Pay Recovery

Dear Professionals,

We have observed that two of our employees are searching for jobs on a job portal and not concentrating on their work tasks. We have come to know that they are planning to leave the job after taking their salary. As they are both freshers and have only been working for 7 to 8 months, it is necessary, as per the terms and conditions mentioned in their appointment letter, to serve a one-month notice if they want to leave the job.

Recovering Notice Pay

In this case, if they leave the job after receiving their salary on 1st August, how can we recover the notice pay? Are there any other remedies to delay their salaries or have them sign an employment bond? Are there any ideas to prevent losses and recover the notice pay if they abscond?

Dear professionals,

If we suspect that some employees are planning to abscond after receiving their salary without any expectation of an experience and relieving letter because they are freshers, as per the terms and conditions mentioned in their appointment letter, they have to serve a one-month notice period. If they want to leave based on these terms and conditions mentioned in the appointment letter, can we demand their resignation to avoid the loss of notice pay recovery? Please advise.

Regards, Dinesh.

Let me take it like this. There is an apprehension that a few of your employees who recently joined are expected to leave the company without notice. Before they leave, can the employer demand their resignation? Right? Before going further, we should refer to the terms and conditions of employment.

Probation Clause Considerations

In some cases, there will be a probation clause which will state that "during probation, the service shall be terminated without assigning any reason and without notice." If this clause is present and if you feel that the employee is not concentrating on his job but is trying to find another job, then terminate him immediately citing the clause in the appointment order. If you have a notice period during probation as well, then give him a notice that his service will stand terminated on, let's say, one month since the date of the letter. That will be legally acceptable.

Resignation vs. Termination

If you ask the employee to resign, it can lead to other issues because an employer is not expected to demand resignation, and demanding resignation will be construed as forced resignation, which is illegal. Therefore, it is better to avoid it. However, you can terminate an employee with or without notice depending upon the terms of service.

Again, just an apprehension that he may leave after collecting a salary is not grounds for termination. But if his attitude shows that he may not continue, then there should be some negligence in work, late coming, leave, etc., to establish that he is not performing, and that can be grounds for termination.

I think I have just responded to a similar query, probably from you only. You cannot withhold the salary just because they might leave if they have the salary in their bank accounts. But if you feel that they are planning to leave without serving the notice period, then you should call them to your cabin and inform them that their performance is not meeting expectations and the management is considering termination. Also, mention that if they depart without proper notice, they will not receive an exit from PF portals, potentially impacting their career negatively. While it is not advisable to resort to such tactics, you can consider these measures to prevent employees from resigning abruptly.

Hi, It is a common scenario across industries but not limited to freshers. In this scenario, you cannot hold their salary as they have not officially informed you about their plan of separation.

What you can do is just pretend that you are not aware of anything, call them one by one for discussion. Just talk to them formally about their training experience with your company so far. During the discussion, just brief them about the scope of growth with the company, the importance of the notice period during separation, the impact of absconding without information, etc. Highlight the future BGV process, PF exit date, etc.

As a permanent solution, you may plan for the salary by the second transfer for trainees, at least for 6 months to 1 year. Say on the 9th or 10th... so that they will get the salary the second week of every month, thereby providing some cushion you will have to forfeit. Salary to be paid on or before the 7th, statutory requirements are there... but no other option.

As a permanent solution, if your trainees are undergoing training using software that involves licenses and training costs, then you may enter into a training agreement at the time of joining itself. Set expectations like a minimum of 1 year or two years. But even then, some will tend to leave. So, identify the root cause why they are leaving, whether their starting salary is on par with industry norms, whether the nature of training involves stress, their work hours are reasonable or overloaded, etc. Conduct regular one-to-one sessions, get feedback regularly, project positive things about the company in a bigger way, and appreciate even trivial achievements of the employees.

This can be a difficult situation for any employer, especially if the employees are freshers who have not completed their probation period. Here are some possible ways to deal with this issue:

Communicate with employees

First of all, you should try to communicate with your employees and find out the reason why they are looking for another job. Maybe they are not satisfied with their work environment, salary, benefits, or career growth opportunities. You can try to address their grievances and offer them some incentives or recognition to retain them. Sometimes, a simple conversation can make a difference and prevent employee turnover.

Review employment contracts and policies

Secondly, you should review your employment contract and policies and make sure that they are clear and enforceable. If your contract states that the employees have to serve a one-month notice period before leaving the job, then you have the right to recover the notice pay from them if they abscond. You can also withhold their salary or any other dues until they complete their notice period or pay the compensation. However, you should not delay their salaries or sign an employment bond without their consent, as this may be illegal or unethical.

Send a legal notice

Thirdly, you should send them a legal notice if they abscond without serving the notice period or paying the compensation. You can hire a lawyer or use an online service to draft and send a legal notice to them. A legal notice will inform them of the consequences of their breach of contract and warn them of the legal action that you may take against them. You can also demand they return any company property or confidential information that they may have in their possession.

Take legal action

Fourthly, you should take legal action against them if they do not respond to your legal notice or comply with your demands. You can file a civil suit in the court of law and claim damages for the loss caused by their absconding. You can also seek an injunction to restrain them from joining any competitor or disclosing any trade secrets. However, you should be prepared for the time and cost involved in pursuing a legal case and weigh the pros and cons of doing so.

I hope this helps you in dealing with your employees who are planning to abscond.

Regards, Krishna Vishwakarma HR Executive

Whatever Krishna has suggested are solutions that involve time and are not practical due to various reasons. You cannot send a communication on the grounds that someone is looking for a job. This is because the decision to stay with one employer is a personal one, and as the employer, you cannot question it. However, once the employee has decided to leave, you can ask why they made that decision to potentially remove any negativity in the work culture.

Employee Satisfaction Surveys

One-on-one personal interactions or what is generally referred to as an employee satisfaction survey, as suggested, are time-consuming. Moreover, they may not always yield conclusive results as many employees may not reveal all the facts.

Reviewing Employment Contracts

Reviewing the employment contracts to make them more enforceable is a policy decision that the management should consider. I have previously pointed out common errors in appointment orders and ways to legally enforce the conditions of service in another thread, likely by the same author. Please refer to the following link: https://www.citehr.com/642111-demand...g-obscond.html

Legal Notices and the Industrial Disputes Act

Sending a legal notice for 'absconding' is not possible if the employee concerned is a workman under the Industrial Disputes Act. For employees who are not managers, supervisors, or those reporting to others, the provisions of the said Act will apply. There is nothing in the Act stating that an employee must serve notice to leave the employer, while the employer must give notice if they wish to terminate an employee. Pursuing legal actions like filing writs can be time-consuming and costly, and recovering notice pay from an employee who has abandoned the job may be challenging, even through legal means.

Injunctions and Employee Rights

Attempting to obtain an injunction from the court, specifically the High Court, to prevent an employee from joining another organization is illegal. The right to work is a fundamental right, and it is not permissible to restrict an employee from seeking employment elsewhere. Unethical practices such as not marking exits in the PF portal or providing negative feedback in background verification, though currently seen in HR practices, are legally questionable. Therefore, obtaining an injunction is not a viable option.

Dear Dinesh Padwale,

In the recent past, your company employed freshly graduated individuals. You have heard that they are searching for a job and may abscond after receiving their salary on 1st August. Considering their current and potential future misconduct, you wish to be proactive and take action. Although learned members have provided their responses, none of them fall within the purview of "HR Management" but rather "Personnel Management."

Questions to Consider

If the newly employed graduates have started looking for a job, consider asking the following questions:

a) Why have the employees developed a distaste for the company? What are the compelling reasons?
b) Is it a recruitment failure? Have you selected the wrong people? Instead of blaming yourself, are you penalizing the employees?
c) What is the role of the reporting manager or HOD in retaining employees? Do they treat them well? Is there any brazenness in the manager's behavior?
d) Did you conduct a stay interview after 30-60-90 days of their employment? Did anyone understand what was going on in their minds?

While you may initiate the strictest disciplinary actions, it cannot alter the ground realities. Your company will have to face this challenge indefinitely. This could be an issue of organizational culture, but by blaming the employees, you are pushing the issue under the carpet. Therefore, the incident merits introspection at the organizational level.

Feedback on the Quality of Your Post

Well, gentleman, your post is far from satisfactory. If members of the HR fraternity who work in professional companies were to read your post, they might avoid the forum. A few senior members with whom I am in touch have expressed their dismay and anguish over the juniors' tendency to bask in low-quality writing.

You need to learn the tenses of the English language and other rules of grammar as soon as possible. Blaming yourself for studying in a vernacular language medium and wallowing in your weaknesses could lead to being relegated in this competitive world. Whether to stay ahead in the competition or lose out to others is a decision you need to prioritize.

Thanks,

Dinesh Divekar

Hi Dinesh,

Regarding your query, if the terms and conditions in the appointment letter clearly state that employees need to serve a one-month notice period before leaving, you can request their resignation to avoid the loss of notice pay recovery. However, it's essential to handle such situations carefully and follow the company's policies and local labor laws.