Hi, my wife is on the first week of her maternity leave. Her current organization is closing down, and they are asking her to resign. If she resigns, she will lose her maternity benefits. What should she do? I need assistance in drafting a legally and professionally sound response. Your help would be greatly appreciated.
From India, Delhi
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From India, Delhi
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Dear friend,
If the company is closing, then where is the question of maternity benefits? All other employees are eligible to receive their wages until the last working day of the company. In your wife's case, instead of salary, it can be called maternity benefit.
If the company is closing, then, in fact, the company does not need to ask for resignation. However, they seem to be playing it safe by showing that the employees left the company voluntarily to avoid unforeseen hassles. In your wife's case, as she is already on maternity leave, advise her to submit an application stating that upon completion of her maternity leave, she is not interested in continuing her employment. Therefore, the period from the date of resignation until the last day of her maternity leave may be considered as the notice period. It remains to be seen whether the company will pay the maternity benefits even after closure or until the last working day of the company.
Thanks,
Dinesh Divekar
From India, Bangalore
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8032If the company is closing, then where is the question of maternity benefits? All other employees are eligible to receive their wages until the last working day of the company. In your wife's case, instead of salary, it can be called maternity benefit.
If the company is closing, then, in fact, the company does not need to ask for resignation. However, they seem to be playing it safe by showing that the employees left the company voluntarily to avoid unforeseen hassles. In your wife's case, as she is already on maternity leave, advise her to submit an application stating that upon completion of her maternity leave, she is not interested in continuing her employment. Therefore, the period from the date of resignation until the last day of her maternity leave may be considered as the notice period. It remains to be seen whether the company will pay the maternity benefits even after closure or until the last working day of the company.
Thanks,
Dinesh Divekar
From India, Bangalore
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Every member of ESI is eligible for benefits for six months even after resignation if the contribution is made for the previous half-yearly period. As such, she can receive benefits from the ESIC. Please check with your local ESI office and follow their advice. However, if your wife does not resign, she may not receive other benefits from the company on time, and she may have to wait until her actual date of resignation.
From India, Vijayawada
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From India, Vijayawada
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Every statutory employment benefit due to the employee is coterminous with the normal terminal benefits of his/her cessation of employment. Like Mr. Dinesh said, some unscrupulous employers resort to creating a scene of voluntary termination of employment on the part of employees to make the process of closure of their undertakings simple and less costly to circumvent the statutory provisions relating to closure. It is discernible from the original post that the closure process has not yet started. Therefore, my suggestion would be to join duty after the expiry of maternity leave and then resign so that the maternity benefits remain intact.
From India, Salem
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From India, Salem
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Thanks for your views. However, since the company is closing down, it must settle all its liabilities towards its employees, including gratuity, salaries, and maternity benefits. I believe that maternity benefits should be given top priority. Please advise.
From India, Delhi
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From India, Delhi
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Please submit a medical certificate, delivery certificate, etc., and make a claim for 26 weeks of benefits in advance on the grounds that the company will be closed upon the completion of 26 weeks. Even though the company is closing, the employer is still responsible for paying the benefits in full.
From India, New Delhi
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From India, New Delhi
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Dear Concern,
Here, the first question is, how long has your wife been working with that organization? This is a very important question, as all the benefits to which she may be entitled are based on service length. Secondly, how was she informed about submitting her resignation?
The above comments from respected members should have clarified the situation for you, but I would like to add a few more points.
As Dinesh Ji rightly pointed out, she does not need to respond to the organization's communication regarding her resignation, as she will lose all her benefits from the date of resignation, including maternity benefits. Therefore, it is better to remain silent and let the company proceed as necessary.
Since the company is closing down, there is no need for her to submit a resignation. However, if they are settling the Full & Final Account of an employee, they will have to clear all legal dues as per the law and as stated in the employee's Appointment Letter.
In my opinion, she does not need to initiate her resignation herself.
From India, Delhi
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Here, the first question is, how long has your wife been working with that organization? This is a very important question, as all the benefits to which she may be entitled are based on service length. Secondly, how was she informed about submitting her resignation?
The above comments from respected members should have clarified the situation for you, but I would like to add a few more points.
As Dinesh Ji rightly pointed out, she does not need to respond to the organization's communication regarding her resignation, as she will lose all her benefits from the date of resignation, including maternity benefits. Therefore, it is better to remain silent and let the company proceed as necessary.
Since the company is closing down, there is no need for her to submit a resignation. However, if they are settling the Full & Final Account of an employee, they will have to clear all legal dues as per the law and as stated in the employee's Appointment Letter.
In my opinion, she does not need to initiate her resignation herself.
From India, Delhi
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Thank so much to everyone for suggestions. My only query is If employer is of natorious mindset can they close the company without paying maternity claim and can they stop relieving letter as well?
From India, Delhi
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From India, Delhi
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First of all, I don't think she is covered under ESIC; otherwise, the employer would have asked her to get benefits from ESIC. Also, if she is already on maternity leave, she must be eligible for it. Now, the question is, even if she submits the resignation, what if the employer accepts her resignation and relieves her immediately? I don't think she should resign; instead, she should ask HR people that she will resign on the last day of company after getting her benefits till date.
From India, Pune
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From India, Pune
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Dear Mr. Pathak,
When the company is closing its operations, the question of employees submitting resignations does not arise. Furthermore, notwithstanding the closure of the company, employees who are already under maternity benefits should receive the full benefit, i.e., 26 weeks.
From India, New Delhi
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When the company is closing its operations, the question of employees submitting resignations does not arise. Furthermore, notwithstanding the closure of the company, employees who are already under maternity benefits should receive the full benefit, i.e., 26 weeks.
From India, New Delhi
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Once the lockout or closure procedures as per Section 25FFA are carried out and compensation as per Section 25F or 25N is paid to all employees, the question of one employee who is on maternity leave alone will not arise. The employer cannot keep the company open until she returns to duty if it happens after around 26 weeks. Therefore, once a closure notice is sent, it will cover all employees, including those who are on leave. After the closure is complete, there will not be any company that will pay a monthly salary to one person who is on maternity leave.
I don't find any legal battle being made in such a scenario that can be quoted as an example. However, I believe that maternity leave, being a leave admissible to pregnant women only and that it cannot be demanded when the woman is not pregnant or has not had childbirth, remains available while in service. Once the company has wound up, the question of leave will not arise. Otherwise, there should be some provision that unavailed maternity leaves can be encashed, as is the case with privileged leave or some other leave that is to be paid along with other amounts at the time of settlement subsequent to the closure of the company.
It should also be noted that in the case of the death of the woman before receiving the maternity benefit, the employer is under an obligation to pay the legal heirs an amount equal to the benefit. A similar provision is not available because it is admissible while in service.
Madhu.T.K
From India, Kannur
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I don't find any legal battle being made in such a scenario that can be quoted as an example. However, I believe that maternity leave, being a leave admissible to pregnant women only and that it cannot be demanded when the woman is not pregnant or has not had childbirth, remains available while in service. Once the company has wound up, the question of leave will not arise. Otherwise, there should be some provision that unavailed maternity leaves can be encashed, as is the case with privileged leave or some other leave that is to be paid along with other amounts at the time of settlement subsequent to the closure of the company.
It should also be noted that in the case of the death of the woman before receiving the maternity benefit, the employer is under an obligation to pay the legal heirs an amount equal to the benefit. A similar provision is not available because it is admissible while in service.
Madhu.T.K
From India, Kannur
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Dear Srinath Sir,
Surely, she is eligible for 26 weeks of benefits. However, after the closure of the company, she will no longer be an employee of that company. Therefore, why would the company pay for a single day's leave? I may be simplifying this logically. I am unsure if it is the company's responsibility to pay the full benefits for leave taken after closure.
To address Mr. Rajawat's question, the reason the company is requesting resignation is that they cannot provide a relieving letter without it.
Thank you.
From India, Pune
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Surely, she is eligible for 26 weeks of benefits. However, after the closure of the company, she will no longer be an employee of that company. Therefore, why would the company pay for a single day's leave? I may be simplifying this logically. I am unsure if it is the company's responsibility to pay the full benefits for leave taken after closure.
To address Mr. Rajawat's question, the reason the company is requesting resignation is that they cannot provide a relieving letter without it.
Thank you.
From India, Pune
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Dear Mr. Aniket,
As already mentioned at the time of the commencement of Maternity Benefit, the company was existing. Consequently, the employee is entitled to full benefits, regardless of the company closing down. We are unsure why the company is ceasing its operations; therefore, the question of employees submitting their resignation does not arise. With the closure of the company, employees' service also comes to an end.
Thank you.
From India, New Delhi
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As already mentioned at the time of the commencement of Maternity Benefit, the company was existing. Consequently, the employee is entitled to full benefits, regardless of the company closing down. We are unsure why the company is ceasing its operations; therefore, the question of employees submitting their resignation does not arise. With the closure of the company, employees' service also comes to an end.
Thank you.
From India, New Delhi
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Srinath Sairam has said that the employee is eligible for maternity benefits irrespective of the company closing down. At the same time, he also states that, consequent to the closure of the company, the employees' services also come to an end. In my post, I have mentioned that once procedures as per Section 25FFA (closure under ID Act) are followed, the operations come to an end, covering all employees who are on leave.
Can you say whether the employer is under any obligation to wait until one employee who is on maternity leave completes her leave to close down the establishment? Should the employer keep the doors of the establishment open without any work and, at the same time, pay wages to the workers until one employee returns from maternity leave? If so, suppose when she is about to return, another employee takes maternity or privileged leave. In that case, should the employer wait for yet another 26 weeks or until the privileged leave is over?
Madhu.T.K
From India, Kannur
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Can you say whether the employer is under any obligation to wait until one employee who is on maternity leave completes her leave to close down the establishment? Should the employer keep the doors of the establishment open without any work and, at the same time, pay wages to the workers until one employee returns from maternity leave? If so, suppose when she is about to return, another employee takes maternity or privileged leave. In that case, should the employer wait for yet another 26 weeks or until the privileged leave is over?
Madhu.T.K
From India, Kannur
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Dear ANONYMOUS,
In my view, the company is in gross violation of the law. It engaged in unfair labor practices. The company wants to close down its business activity without following due process of law but by asking employees to resign of their own accord.
What have other employees done? Have they resigned and gone of their own accord? Once your wife also resigns of her own accord, she will have to forgo her maternity benefits.
In my view, if the employer declares retrenchment during maternity leave, the female employee should be paid with full maternity leave. I suggest that you or your wife should make a representation to the employer and ask for full maternity leave, maternity bonus amount, compensation in accordance with Section 25F of the ID Act, and other legal dues as applicable.
From India, Mumbai
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In my view, the company is in gross violation of the law. It engaged in unfair labor practices. The company wants to close down its business activity without following due process of law but by asking employees to resign of their own accord.
What have other employees done? Have they resigned and gone of their own accord? Once your wife also resigns of her own accord, she will have to forgo her maternity benefits.
In my view, if the employer declares retrenchment during maternity leave, the female employee should be paid with full maternity leave. I suggest that you or your wife should make a representation to the employer and ask for full maternity leave, maternity bonus amount, compensation in accordance with Section 25F of the ID Act, and other legal dues as applicable.
From India, Mumbai
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