Hi,
One of our employees, who has been working with us for the past 9 months, abruptly left after receiving his salary. As per his appointment letter, we included a probationary period of 6 months, with the notice period being 30 days or one month's salary. After 6 months, we did not provide a confirmation letter, but we hiked his salary as we found him suitable for the job. However, now that he has quit, we want to explore legal options to ensure he sticks to his commitment.
My questions are:
1. What are our options, and who should we consult for legal recourse?
2. He has provided a fake permanent residential address, so even if we send a legal notice, we are unsure it will reach him. Can we send a soft copy of the legal notice to his email address? Please advise.
Thanks,
S.N
From India, Bangalore
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One of our employees, who has been working with us for the past 9 months, abruptly left after receiving his salary. As per his appointment letter, we included a probationary period of 6 months, with the notice period being 30 days or one month's salary. After 6 months, we did not provide a confirmation letter, but we hiked his salary as we found him suitable for the job. However, now that he has quit, we want to explore legal options to ensure he sticks to his commitment.
My questions are:
1. What are our options, and who should we consult for legal recourse?
2. He has provided a fake permanent residential address, so even if we send a legal notice, we are unsure it will reach him. Can we send a soft copy of the legal notice to his email address? Please advise.
Thanks,
S.N
From India, Bangalore
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As his probation has not been confirmed in writing, he is deemed to be under probation. Of course, there can be another interpretation that if probation is not extended in writing, he will automatically become confirmed. This would primarily depend on the terms of the appointment order or standing orders, if available. The pay hike given to the employee cannot be taken as evidence to show that he was confirmed from the date of such hike.
Now, if you move legally, on what grounds would you fight? You can send letters asking him to report to duty, treating it as a case of absconding from the job, and ultimately, you can terminate his service. That's all.
Sending notice through mails is not recommended. Even if you serve notice by any means, whereas he replies that he could not report due to some genuine reasons (supported by evidence) and he cannot continue with the job, what would be your next step? You can only stop the proceedings because under Indian law, the right to decide where one should work is his own, and he cannot be compelled to continue with an employer. Regarding notice pay from the employee, also the final word from a Court will take a long time. With regard to an employee not under a managerial position, the provisions of the Industrial Disputes Act will apply, and if your employee in question is such a kind of employee, then the Court may refer to ID Act only, in which there is no obligation on the part of an employee to serve notice or pay in lieu if he wants to leave, though the employer is under an obligation to serve notice or pay in lieu in order to retrench/terminate the service of an employee. These are the main issues to be considered before we go ahead with legal action against an employee. Therefore, I will recommend that you should close the case after sending two or three letters to him asking him to report back or directing him to show cause why his service should not be terminated. Remember that without offering him an opportunity to show cause if you directly terminate his service also there is a chance that he may file a suit against you and demand reinstatement because an employee not reporting cannot be dismissed without giving him an opportunity to be heard!
Regards,
Madhu.T.K
From India, Kannur
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4526Now, if you move legally, on what grounds would you fight? You can send letters asking him to report to duty, treating it as a case of absconding from the job, and ultimately, you can terminate his service. That's all.
Sending notice through mails is not recommended. Even if you serve notice by any means, whereas he replies that he could not report due to some genuine reasons (supported by evidence) and he cannot continue with the job, what would be your next step? You can only stop the proceedings because under Indian law, the right to decide where one should work is his own, and he cannot be compelled to continue with an employer. Regarding notice pay from the employee, also the final word from a Court will take a long time. With regard to an employee not under a managerial position, the provisions of the Industrial Disputes Act will apply, and if your employee in question is such a kind of employee, then the Court may refer to ID Act only, in which there is no obligation on the part of an employee to serve notice or pay in lieu if he wants to leave, though the employer is under an obligation to serve notice or pay in lieu in order to retrench/terminate the service of an employee. These are the main issues to be considered before we go ahead with legal action against an employee. Therefore, I will recommend that you should close the case after sending two or three letters to him asking him to report back or directing him to show cause why his service should not be terminated. Remember that without offering him an opportunity to show cause if you directly terminate his service also there is a chance that he may file a suit against you and demand reinstatement because an employee not reporting cannot be dismissed without giving him an opportunity to be heard!
Regards,
Madhu.T.K
From India, Kannur
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Legal Notice for Breach of Notice Period .docx