Hi Senior HR's,
I work as an HR Executive in an IT company. Here, we had a case where an employee joined as a trainee in January 2012, and by June 2012, he was on our company's payroll as a permanent employee. In December 2012, he gave us his resignation. In the appointment letter, it was clearly stated that upon leaving the company, a three-month notice period needed to be provided. However, the candidate left the office without any intimation. We waited for 20 days and then sent him a show-cause notice letter to his residential address.
My query is, if we want to send a show-cause notice to such absconded employees, what should be the waiting period from his relieving date? Additionally:
- If we send a show-cause notice and the candidate doesn't reply, what action can we take?
- If the notice is returned due to the unavailability of the person at the mentioned address, what further action can we take?
Any help in this situation would be greatly appreciated.
From India, Hyderabad
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1I work as an HR Executive in an IT company. Here, we had a case where an employee joined as a trainee in January 2012, and by June 2012, he was on our company's payroll as a permanent employee. In December 2012, he gave us his resignation. In the appointment letter, it was clearly stated that upon leaving the company, a three-month notice period needed to be provided. However, the candidate left the office without any intimation. We waited for 20 days and then sent him a show-cause notice letter to his residential address.
My query is, if we want to send a show-cause notice to such absconded employees, what should be the waiting period from his relieving date? Additionally:
- If we send a show-cause notice and the candidate doesn't reply, what action can we take?
- If the notice is returned due to the unavailability of the person at the mentioned address, what further action can we take?
Any help in this situation would be greatly appreciated.
From India, Hyderabad
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There is no misconduct involved here to issue a charge sheet to the employee. He has given his resignation letter, and he has not given three months' notice. So the liability from his side is to make payment in lieu of the notice period.
T. Sivasankaran
From India, Chennai
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T. Sivasankaran
From India, Chennai
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Dear [Employee's Name],
In this case, the employee has already resigned from service, but without serving the notice period, they have left without any intimation. You should send a letter to remind them to deposit the notice period wages as mentioned in their contract and to clear their Full & Final settlement with the employer. Failure to do so may result in the employer taking suitable legal action against them and closing the file.
Regards,
Vishal
From India, Haldwani
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In this case, the employee has already resigned from service, but without serving the notice period, they have left without any intimation. You should send a letter to remind them to deposit the notice period wages as mentioned in their contract and to clear their Full & Final settlement with the employer. Failure to do so may result in the employer taking suitable legal action against them and closing the file.
Regards,
Vishal
From India, Haldwani
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Thank you so much,
I would like to know by how many days we can send the show cause notice to the candidate for his unauthorized absence. Additionally, if the candidate neither pays the deposit amount of the notice period nor provides any explanation, what would be the next step taken.
From India, Hyderabad
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I would like to know by how many days we can send the show cause notice to the candidate for his unauthorized absence. Additionally, if the candidate neither pays the deposit amount of the notice period nor provides any explanation, what would be the next step taken.
From India, Hyderabad
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Firstly you have to send him first letter for unauthorized absence ,if he did’t came
then after 3days again you have to send him second letter for the same after 3days
if you not got positive result then you have to send him Ist show cause if
he didn’t came then you should take disciplinary action against him
as per principal nature of justice .
Second ,if candidate not deposit amount of notice period then you can take him legal action
otherwise close the file it is totally depend upon your management .
From India, Haldwani
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then after 3days again you have to send him second letter for the same after 3days
if you not got positive result then you have to send him Ist show cause if
he didn’t came then you should take disciplinary action against him
as per principal nature of justice .
Second ,if candidate not deposit amount of notice period then you can take him legal action
otherwise close the file it is totally depend upon your management .
From India, Haldwani
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I agree with Sivashanakaran. When an employee has submitted his resignation, how can you construe it as absconding and unauthorized absence? You should verify whether he has complied with the notice period as per the terms of the contract. If not, you can make a claim for wages in lieu of the notice period, and if he does not comply still, take recourse to necessary remedies available to you under the terms of the contract or law, such as adjusting the notice pay against dues payable to him, etc.
B. Saikumar
HR & Labor Law Advisor
Mumbai
From India, Mumbai
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B. Saikumar
HR & Labor Law Advisor
Mumbai
From India, Mumbai
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Dear Mr. Saikumar,
I beg to differ with you and T. Sivasankaran. To stop reporting for duty without notifying the cause of absence is nothing but "abandonment of duty." Mere submission of a letter of resignation cannot become grounds for the stoppage of reporting for duty. An employee has to serve until the cessation of the employer-employee relationship. This relationship is born out of the acceptance of the letter of appointment by the employee. The poster of this post, Sravanthi, has clearly mentioned that the notice period was for three months.
For Sravanthi: Upon receipt of the letter of resignation from the said employee, you should have issued a letter of "Acceptance of Resignation." In this letter, you could have reminded the employee of the provisions of separation mentioned in the appointment letter. This action would have strengthened your case.
Send one more letter to the absconding employee. The further course of action would depend on the willpower of your management. If your management has a strong willpower, then send a lawyer's notice as to why legal action should not be pursued for the recovery of wages in lieu of employment. If the employee does not respond to the lawyer's notice, then let the lawyer lodge a police complaint.
I am recommending you to do all this so that it becomes a deterrent to the serving employees. When you become tough against these truant employees, it sends a signal to one and all about what could be in store for them for their wayward behavior. This is how the organization's culture is shaped. If you do not take tough action in the coming months, there will be a few more such cases.
If you wish to pursue the legal option in its entirety, do not strike the name of the employee until you conduct the domestic enquiry. Your lawyer will advise you on this.
Ok...
Dinesh V Divekar
From India, Bangalore
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I beg to differ with you and T. Sivasankaran. To stop reporting for duty without notifying the cause of absence is nothing but "abandonment of duty." Mere submission of a letter of resignation cannot become grounds for the stoppage of reporting for duty. An employee has to serve until the cessation of the employer-employee relationship. This relationship is born out of the acceptance of the letter of appointment by the employee. The poster of this post, Sravanthi, has clearly mentioned that the notice period was for three months.
For Sravanthi: Upon receipt of the letter of resignation from the said employee, you should have issued a letter of "Acceptance of Resignation." In this letter, you could have reminded the employee of the provisions of separation mentioned in the appointment letter. This action would have strengthened your case.
Send one more letter to the absconding employee. The further course of action would depend on the willpower of your management. If your management has a strong willpower, then send a lawyer's notice as to why legal action should not be pursued for the recovery of wages in lieu of employment. If the employee does not respond to the lawyer's notice, then let the lawyer lodge a police complaint.
I am recommending you to do all this so that it becomes a deterrent to the serving employees. When you become tough against these truant employees, it sends a signal to one and all about what could be in store for them for their wayward behavior. This is how the organization's culture is shaped. If you do not take tough action in the coming months, there will be a few more such cases.
If you wish to pursue the legal option in its entirety, do not strike the name of the employee until you conduct the domestic enquiry. Your lawyer will advise you on this.
Ok...
Dinesh V Divekar
From India, Bangalore
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Dear Mr. Dinesh,
In light of your views on the post, I have again gone through the details of the query. There is substance in what you said since the employee, though submitted the resignation, stopped attending the office during the notice period. However, it is also not clear from the query whether there is any clause in the appointment letter to enable the employee to receive three months' wages in lieu of notice.
Thanks,
B. Saikumar
Mumbai
From India, Mumbai
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In light of your views on the post, I have again gone through the details of the query. There is substance in what you said since the employee, though submitted the resignation, stopped attending the office during the notice period. However, it is also not clear from the query whether there is any clause in the appointment letter to enable the employee to receive three months' wages in lieu of notice.
Thanks,
B. Saikumar
Mumbai
From India, Mumbai
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I was clarifying the legal position and I have not mentioned what is good or bad for an organization.
The post talked about a show cause notice, and a show cause notice is always associated with "Misconduct."
Submitting resignation without notice can, in no stretch of imagination, be construed as "Misconduct." If he has not mentioned his relieving date, it can only be construed that he is prepared to fulfill the conditions - either serve three months or pay three months' notice pay. Hence, all your communications should be restricted to this contractual liability of three months' notice or three months' notice pay.
I had never been in favor of initiating action against someone so that it can act as a deterrent to others.
Additional claims the management can make if one wants to be tough:
1. List of any items issued to him like a laptop, vehicle, etc., and claim that these company assets had not been surrendered, hence payment in lieu of the same.
2. List documents and jobs in his possession and claim that he has not handed over the pending jobs and documents. Mention that any loss arising from this will be recovered from him.
3. Any advance paid to him can be mentioned for recovery.
The point I was making in my first post was that "this is not misconduct," and the Management cannot issue a "Show Cause Notice" for the same.
Issue letters mentioning only the contractual liability. He has not abandoned employment. He has not followed the following:
1. Has not fulfilled the condition of the Notice period.
2. Has not handed over the charge of duties in a proper manner.
T. Sivasankaran
From India, Chennai
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The post talked about a show cause notice, and a show cause notice is always associated with "Misconduct."
Submitting resignation without notice can, in no stretch of imagination, be construed as "Misconduct." If he has not mentioned his relieving date, it can only be construed that he is prepared to fulfill the conditions - either serve three months or pay three months' notice pay. Hence, all your communications should be restricted to this contractual liability of three months' notice or three months' notice pay.
I had never been in favor of initiating action against someone so that it can act as a deterrent to others.
Additional claims the management can make if one wants to be tough:
1. List of any items issued to him like a laptop, vehicle, etc., and claim that these company assets had not been surrendered, hence payment in lieu of the same.
2. List documents and jobs in his possession and claim that he has not handed over the pending jobs and documents. Mention that any loss arising from this will be recovered from him.
3. Any advance paid to him can be mentioned for recovery.
The point I was making in my first post was that "this is not misconduct," and the Management cannot issue a "Show Cause Notice" for the same.
Issue letters mentioning only the contractual liability. He has not abandoned employment. He has not followed the following:
1. Has not fulfilled the condition of the Notice period.
2. Has not handed over the charge of duties in a proper manner.
T. Sivasankaran
From India, Chennai
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Notice of Employee Change.doc