Hello,
I have come across a situation where we selected a candidate, and he has joined the company. However, he has not yet taken the appointment letter and has been absent from work for the past 25 days. He had taken permission for 15 days of leave and informed us via SMS that he is unwell and needs to extend his leave. We have provided him with a laptop and phone. We need to terminate his employment legally. Can we take any legal actions against this candidate in this case?
Experts, please give your views.
From India, Bangalore
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I have come across a situation where we selected a candidate, and he has joined the company. However, he has not yet taken the appointment letter and has been absent from work for the past 25 days. He had taken permission for 15 days of leave and informed us via SMS that he is unwell and needs to extend his leave. We have provided him with a laptop and phone. We need to terminate his employment legally. Can we take any legal actions against this candidate in this case?
Experts, please give your views.
From India, Bangalore
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Greetings,
You have offered him the laptop and the cell phone, which means you had legally completed the induction process, and the employee had willingly signed in. Assuming that there is enough signing-off that had happened, please be prepared with those documents as proof to claim the equipment back.
Please act as early as possible. You have to send him three letters, the first being the notification of him not reporting and the consequences of it. Clearly mention the time within which he needs to respond, such as 24 hours to 3 days.
If no intimation is received, please initiate the next level, notifying him that no intimation from him will lead to a temporary pause in his employment.
The third would be sent to him at the end of 21 days, notifying him that his employment would be terminated, and if he doesn't hand over the office equipment including the laptop and the phone, an FIR would be lodged.
On the contrary, have you checked his conditions in person? Would anyone from your team or his team check what he is going through? Please investigate well to ensure a just procedure with him. It shouldn't be the case that he is going through real trouble and gets axed from his job too.
Wish you all the best!
From India, Mumbai
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1872You have offered him the laptop and the cell phone, which means you had legally completed the induction process, and the employee had willingly signed in. Assuming that there is enough signing-off that had happened, please be prepared with those documents as proof to claim the equipment back.
Please act as early as possible. You have to send him three letters, the first being the notification of him not reporting and the consequences of it. Clearly mention the time within which he needs to respond, such as 24 hours to 3 days.
If no intimation is received, please initiate the next level, notifying him that no intimation from him will lead to a temporary pause in his employment.
The third would be sent to him at the end of 21 days, notifying him that his employment would be terminated, and if he doesn't hand over the office equipment including the laptop and the phone, an FIR would be lodged.
On the contrary, have you checked his conditions in person? Would anyone from your team or his team check what he is going through? Please investigate well to ensure a just procedure with him. It shouldn't be the case that he is going through real trouble and gets axed from his job too.
Wish you all the best!
From India, Mumbai
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Dear Swamy,
This is in addition to what (Cite Contribution) has said. You have issued a few company assets to the employee. Do you have proper records of the transfer of assets? This is something important.
The second issue is a procedural flaw in your company. The appointment letter is a contract between the employer and the employee. Your company has allotted assets to the employee even before establishing a proper employer-employee relationship. What was the hurry to do that?
The third concern is regarding making a personal visit to the employee's home or last known address. Has anyone visited? Is he really sick, or has he joined another employment? If he has changed his address or joined somewhere else, it could pose a huge problem for you.
Thanks,
Dinesh Divekar
From India, Bangalore
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This is in addition to what (Cite Contribution) has said. You have issued a few company assets to the employee. Do you have proper records of the transfer of assets? This is something important.
The second issue is a procedural flaw in your company. The appointment letter is a contract between the employer and the employee. Your company has allotted assets to the employee even before establishing a proper employer-employee relationship. What was the hurry to do that?
The third concern is regarding making a personal visit to the employee's home or last known address. Has anyone visited? Is he really sick, or has he joined another employment? If he has changed his address or joined somewhere else, it could pose a huge problem for you.
Thanks,
Dinesh Divekar
From India, Bangalore
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Dear Friend,
You should follow the below-mentioned procedure:
Issue a Show Cause Notice and advise him to return to duty without any delay. Since the management has issued some assets and he is claiming to be sick, immediately send an admin personnel to check his status at either his temporary or permanent address. If anything objectionable is found, check the references he provided in his resume or joining details. He will either come and join or submit the company assets.
If not, be alert in the future to issue such assets only after completing all relevant formalities, including background verification. Remember, not all fishes in the pond are black.
Thanks
From India
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You should follow the below-mentioned procedure:
Issue a Show Cause Notice and advise him to return to duty without any delay. Since the management has issued some assets and he is claiming to be sick, immediately send an admin personnel to check his status at either his temporary or permanent address. If anything objectionable is found, check the references he provided in his resume or joining details. He will either come and join or submit the company assets.
If not, be alert in the future to issue such assets only after completing all relevant formalities, including background verification. Remember, not all fishes in the pond are black.
Thanks
From India
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I wonder to know that a candidate was allowed to join without the delivery of an appointment letter! Not only that, he was issued with some of the assets of the company to keep in possession without the completion of proper formalities of joining as an employee!! Still, another strange thing is that he was sanctioned leave for 15 days at the very start of his service, when he would not have been entitled to that!!!
How and in what circumstances was that allowed to happen? Can you please clarify? I am of the view that you have not provided the very essential bare facts of the case to help the members arrive at some appropriate opinion.
From India, Delhi
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How and in what circumstances was that allowed to happen? Can you please clarify? I am of the view that you have not provided the very essential bare facts of the case to help the members arrive at some appropriate opinion.
From India, Delhi
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"But he has not yet taken the appointment letter and has been absent from work for the past 25 days."
The first thing that should have been done upon joining is to take a copy of the appointment order duly signed, accepting all terms and conditions. This step has been overlooked. What type of leave has he been granted? 15 days of paid/unpaid leave? I do hope he has signed for and received company property.
Now, to terminate him, you will have to follow the full procedure of a show-cause notice, domestic enquiry, etc. In the meantime, ask him to return the company property immediately. It is evident that proper HR procedures do not exist, or if they do, they have been overlooked. This situation has led to a scenario where the equipment has been handed over, but the employee has not been coming to the office or communicating any problems he might be facing.
From India, Pune
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The first thing that should have been done upon joining is to take a copy of the appointment order duly signed, accepting all terms and conditions. This step has been overlooked. What type of leave has he been granted? 15 days of paid/unpaid leave? I do hope he has signed for and received company property.
Now, to terminate him, you will have to follow the full procedure of a show-cause notice, domestic enquiry, etc. In the meantime, ask him to return the company property immediately. It is evident that proper HR procedures do not exist, or if they do, they have been overlooked. This situation has led to a scenario where the equipment has been handed over, but the employee has not been coming to the office or communicating any problems he might be facing.
From India, Pune
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I think you are making out a case out of nothing. However answer is nothing can be done. Please look in to your own system and pose problems. Dr Aloke Chakravartty MD, Disha Education ltd
From India, Raipur
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From India, Raipur
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Dear Members All of u have discussed the matter on above issue But what can we understand with response by honorable Mr AK Chakrvarti
From India
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From India
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Mr. Chakravartty seems to be 100% right. The querist has also not responded to my question. No response fro the querist, itself is a proof that he posted just a hypothetical query.
From India, Delhi
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From India, Delhi
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Dear,
Please provide the background of the case. Without this information, prima facie, it appears to be a case of negligence by the HR department in rushing without completing the essential formalities. This may sound harsh, but a show-cause notice must also be issued to the HR personnel involved. Those who disagree with this opinion, may kindly answer whether they would like to have such HR executives in their team?
Warm regards.
From India, Delhi
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Please provide the background of the case. Without this information, prima facie, it appears to be a case of negligence by the HR department in rushing without completing the essential formalities. This may sound harsh, but a show-cause notice must also be issued to the HR personnel involved. Those who disagree with this opinion, may kindly answer whether they would like to have such HR executives in their team?
Warm regards.
From India, Delhi
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Dear Mr. Swamy,
It is a surprise to note that without completion of the joining formalities of the employee, how could you give him company assets? Without accepting the appointment terms and conditions, on what basis are you treating him as an employee? This is something unbelievable. This needs to be clarified.
After so much time has passed, I am seeing the opinions given by (Cite Contribution) in this forum. Our friends (Cite Contribution) and other contributing members have provided their opinions well, which I also agree with.
Adoni Suguresh
Labour Laws Consultant
From India, Bidar
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It is a surprise to note that without completion of the joining formalities of the employee, how could you give him company assets? Without accepting the appointment terms and conditions, on what basis are you treating him as an employee? This is something unbelievable. This needs to be clarified.
After so much time has passed, I am seeing the opinions given by (Cite Contribution) in this forum. Our friends (Cite Contribution) and other contributing members have provided their opinions well, which I also agree with.
Adoni Suguresh
Labour Laws Consultant
From India, Bidar
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Dear Swamy,
You have not mentioned whether you have done the background check before an offer was made to him.
What is the document on which he was admitted on roll?
Check whether in his resume any references of prominent personalities were indicated. If yes, use those references to track him down and find out whether the reason given for leave is genuine. On what basis was this sort of long leave, especially immediately after joining, granted? Fix responsibility on them for dereliction. Is he still maintaining/opening his communication with the company through the mobile provided by the company? It's likely it should have been switched off by now.
Did you obtain any service bond from him? Most likely, no.
In the circumstances explained, what you can do is to bar all incoming and outgoing calls of the company's mobile (if found necessary to avert misuse/abuse) and also lodge a police complaint. Presumably, the police may request documentation such as an appointment letter and other communication with him, proof of the company's assets left in his possession, etc. Act fast to cut short thinking like this. Give an update on the action you have initiated so far so that members can apply their minds to the next possible step and suggest.
From India, Bangalore
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You have not mentioned whether you have done the background check before an offer was made to him.
What is the document on which he was admitted on roll?
Check whether in his resume any references of prominent personalities were indicated. If yes, use those references to track him down and find out whether the reason given for leave is genuine. On what basis was this sort of long leave, especially immediately after joining, granted? Fix responsibility on them for dereliction. Is he still maintaining/opening his communication with the company through the mobile provided by the company? It's likely it should have been switched off by now.
Did you obtain any service bond from him? Most likely, no.
In the circumstances explained, what you can do is to bar all incoming and outgoing calls of the company's mobile (if found necessary to avert misuse/abuse) and also lodge a police complaint. Presumably, the police may request documentation such as an appointment letter and other communication with him, proof of the company's assets left in his possession, etc. Act fast to cut short thinking like this. Give an update on the action you have initiated so far so that members can apply their minds to the next possible step and suggest.
From India, Bangalore
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